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Derrick
O'Neal MASON

Classification: Murderer

Characteristics: Robbery

Number of victims: 1

Date of murder:
March 24, 1994

Date of arrest:
5 days after

Date of birth:
August 9, 1974

Victim profile:
Angela Cagle, 25 (convenience store clerk)

Method of murder:
Shooting (.380-caliber
pistol)

Location: Madison County, Alabama, USA

Status:
Executed
by lethal injection in Alabama on September 22, 2011

Summary:

25-year-old Angela Cagle worked as a clerk in a Huntsville convenience
store. Mason entered the store in the early morning, directing Cagle
to a backroom at gunpoint. According to Mason, he was trying to force
her to tell him how to turn off the camera when he ordered her to take
her clothes off. He then shot her in the face twice with a handgun.
Mason claimed the first shot just went off, and the second shot was to
keep her from identifying him. He then opened the cash register and
fled.

A few days after the murder, an unidentified man
later told police that Mason committed the crime. The informant
described the gun used, told police that Mason was "out of control"
and "trying to make a name for himself," and then led authorities to
Mason's car. Inside, police found a gun later determined to be the
murder weapon.

After he was arrested, Mason confessed to
committing the murder. The jury voted 10-2 to sentence him to death, a
recommendation the trial court accepted.

ATMORE, Alabama -- A man who committed the
execution-style killing of a Huntsville convenience store clerk in
1994 has been executed. Derrick O'Neal Mason, 37, was sentenced to die
by lethal injection at 6 p.m. at Holman Correctional Institute in
Atmore. He was pronounced dead at 6:49 p.m.

In the final hours before the execution, Mason
refused to eat breakfast and he wasn't expected to eat dinner, either,
prison officials said. He did not request a special last meal, saying
he was fasting today. Several people visited him at the prison, and
five of Mason's family members were expected to witness the execution,
while four of the victim's relatives were set to be witnesses. Their
names were not released. Mason apologized to the victim's family in
his final statement. It was his second apology to the family -- the
first was via letter two or three years after Cagle's death, and was
issued out of "deep remorse and sadness," according to the executive
director of Project Hope to Abolish the Death Penalty.

Mason's lawyers filed emergency appeals with the
Alabama Supreme Court and the U.S. Supreme Court asking that his
scheduled execution be postponed for further review of his death
penalty sentence. Those appeals were denied. Gov. Robert Bentley on
Wednesday afternoon declined to commute Mason's sentence to life in
prison without the chance of parole. Retired Madison County Circuit
Court Judge Loyd Little wanted the governor to commute the death
sentence, saying he had been on the bench 6 months when he issued his
ruling and has since realized "it really was not the right decision."

Mason made Cagle remove her clothes and shot her at
close range "while she sat naked and completely vulnerable" to Mason,
Little said at sentencing. Mason shot Cagle in the face at close range
with a .380-caliber pistol after he saw that the first shot didn't
kill her.

Little said during sentencing that Mason's crime
was "extremely wicked, shockingly evil, outrageously wicked and vile
and cruel, and with the actions of the defendant designed to inflict a
high degree of pain and fear in the victim, with utter indifference to,
or even enjoyment of, the suffering of this victim."

Mason is the fifth person executed in Alabama this
year and the second from Huntsville. Leroy White was executed Jan. 13
for the shotgun slaying of his estranged wife, Ruby White, at her
Evans Drive home in 1988.

Alabama Executes Man Who Shot, Killed Store
Clerk

By Harry R. Weber - ABCnews.go.com

September 23, 2011

A man described by a police informant as trying to
make a name for himself was executed Thursday evening for the 1994
shooting death of an Alabama store clerk during a robbery. Derrick O.
Mason, 37, was administered an injection and pronounced dead minutes
later at 6:49 p.m. local time at Alabama's Holman Prison. It was the
third execution this week in the United States.

Strapped to the gurney, Mason gave a brief final
statement, apologizing to the victim's family. He thanked the victim's
father for getting in touch with him years ago and granting him his
forgiveness. Just before the chemicals started pumping through the
veins in Mason's arm, a prison chaplain held Mason's hand and kneeled
down and said a prayer before stepping back. Mason's breathing slowed,
his head tilted backward and his lips pursed several times before he
became very still. Several minutes later, authorities closed the
curtain on the death chamber. During the execution, the condemned
man's mother Maggie Mason sat in the front row with her head bowed
down. "He's resting for the first time," she said repeatedly. Later
she held the hands of some other family members present and said: "He's
gone."

Mason was convicted of killing 25-year-old Angela
Cagle in Huntsville on March 24, 1994, by shooting her twice in the
face at close range after ordering her to take her clothes off during
an early morning robbery. The victim was found slain in the back room
of a convenience store. An unidentified man later told police that
Mason committed the crime. The informant described the gun used, told
police that Mason was "out of control" and "trying to make a name for
himself," and then led authorities to Mason's car. Inside, police
found a gun later determined to be the murder weapon. After he was
arrested, Mason confessed, court records show.

Mason's execution capped a busy week in U.S. death
chambers. Georgia on Wednesday put Troy Davis to death for the 1989
death of a policeman, despite an international outcry and claims he
was innocent. In Texas, officials executed a white supremacist who
dragged to death James Byrd Jr., a black man from East Texas. Mason
also was the fifth person executed in Alabama this year and the third
to die since the state changed the first drug used in its execution
cocktail from sodium thiopental to pentobarbital. The change follows a
nationwide shortage of sodium thiopental.

Over the years, Mason argued that his
Constitutional rights were violated because he was initially arrested
on an unrelated misdemeanor assault warrant and therefore the gun
found in his car should not have been admitted into evidence in the
murder case. He also argued that his confession was involuntary
because he was subjected to improper questioning, intoxicated and
hungry during the interrogation, psychologically coerced, and misled
by law enforcement officers.

Mason alleged that police interrogators grabbed him,
pinned him down to his chair, and forced him to look at photographs,
court records show. Appellate courts were not swayed by the arguments.
Mason had exhausted appeals Thursday, including an 11th-hour bid
before the U.S. Supreme Court.

Alabama governor rejects inmate's clemency
request

By Bob Johnson - MontgomeryAdvertiser.com

September 21, 2011

Alabama's governor has turned down a last-minute
request for clemency from an Alabama death row inmate scheduled to be
executed by lethal injection today at Holman Prison in Atmore. Bentley
said in a brief statement Wednesday that he saw no reason to overturn
the decision of the jury that found Derrick Mason guilty and
recommended that he be executed.

Mason is scheduled to die at 6 p.m. today for the
March 24, 1994, shooting death of Huntsville convenience store clerk
Angela Cagle.

Mason, now 37, was convicted of shooting 25-year-old
Cagle twice in the face during an early morning robbery. Mason is
waiting to hear from a last-minute appeal to the Alabama Supreme Court
challenging the competency of his counsel during the sentencing phase
of his trial.

Mason's plea to Bentley included a letter from
retired Madison County Circuit Court Judge Loyd Little, who sentenced
Mason to death. He said he now realizes the death sentence was not
appropriate when compared to other cases. Mason's attorney, Brian
Esser said Little's change of heart concerning the death sentence is
reason to stop the execution. "Critics have said that Judge Little is
anti-death penalty. It is not that he is anti-death penalty. He is
anti-death penalty in this case where death is not warranted," Esser
said in a statement released by his New York office. Esser said Mason
has personally written to Bentley and told the governor he has changed
his life. Mason was 19 at the time Cagle was killed.

Court records show that Cagle was working as a
clerk in a Majik Mart convenience store at about 3 a.m. when she was
shot to death during a robbery. Her body was found lying across a desk
in the convenience store's storeroom. Mason was accused of shooting
Cagle at close range after ordering her to take her clothes off.

Mason would be the fifth person executed in Alabama
this year and the third to die in the state's death chamber since the
state changed the first drug used in its execution cocktail from
sodium thiopental to pentobarbital. The change was made because of a
nationwide shortage of sodium thiopental.

Derrick O'Neal Mason

ProDeathPenalty.com

Derrick O'Neal Mason was convicted in 1998 for the
murder of Angela Michele Cagle, who was found dead in the back room of
a convenience store in Alabama on March 27, 1994. Mason became a
suspect in the Cagle murder after an unidentified man told the police
that Mason had committed the crime, described the gun used, and told
the police that Mason "was out of control" and "trying to make a name
for himself."

A few days after the murder, on March 29, 1994, the
unidentified informant led the police to Mason's car where Mason was
arrested on an outstanding warrant for a misdemeanor assault. As part
of an inventory search, police searched Mason's car and found a gun
that laboratory results later indicated was the same gun used in
Angela Cagle's murder. After arresting Mason around 10:00 p.m., police
held him in an interrogation room, first interrogating him on the
assault for which he was arrested, then on an unrelated prior robbery,
and then on the murder. Approximately two hours later, Mason confessed
to committing the murder.

Mason was tried, found guilty, and the jury voted
10-2 to sentence him to death, a recommendation the trial court
accepted.

Mason v. State, 768 So.2d 981 (Ala.Crim.App.
1998). (Direct Appeal)

Defendant was convicted in the Madison Circuit
Court, No. CC–94–922, Loyd H. Little, Jr., J., of murder committed
during the course of a robbery in the first degree or an attempt
thereof, and was sentenced to death. He appealed. The Court of
Criminal Appeals, Brown, J., held that: (1) prosecution's closing
argument did not warrant reversal; (2) inventory search of defendant's
vehicle following his arrest was legal; (3) defendant was not entitled
to disclosure of identity of informant who named him as the murderer;
(4) defendant was not denied effective assistance of counsel; and (5)
sentence of death was appropriate. Affirmed.

BROWN, Judge.

The appellant, Derrick O'Neal Mason, was convicted
of the capital offense of murder committed during the course of a
robbery in the first degree or an attempt thereof, a violation of §
13A–5–40(a)(2), Code of Alabama 1975. By a vote of 10 to 2, the jury
recommended that the appellant be sentenced to death. The trial court
followed the jury's recommendation and sentenced the appellant to
death.

At the time of her death, 25-year-old Angela Cagle
was working as a clerk in a Majik Mart convenience store in Huntsville.
Around 2:30 a.m. on Sunday, March 27, 1994, Don Teal, a newspaper
delivery man, entered the south door of the Majik Mart to deliver a
stack of newspapers. He spoke briefly with Angela Cagle and a customer
who was in the store.

Around 3:30 a.m., DeAnna Lechman stopped by a
nearby Circle K convenience store to purchase some cigarettes. Circle
K did not have the brand that Lechman wanted, so she went to the Majik
Mart. Lechman entered through the north door of the store because the
south door was locked. As she entered the store, she noticed a sign on
the door that read, “This door locked. Use other door.” (R. 825.)
Lechman did not see anyone in the store, so she assumed that the clerk
was in the back. She called out for the clerk. When Lechman approached
the back of the store, she observed the partially nude body of Angela
Cagle, lying in the storeroom.

Lechman went to the counter and telephoned for help.
While she was talking with the police dispatcher, she noticed that the
“gas pump machine” was beeping and that it reflected an amount of
$5.00 in the display. The cash register was also emitting a continuous
tone. In order to hear the dispatcher, Lechman turned off the gas pump
machine. She tried unsuccessfully to turn off the cash register.
Within a few minutes, the police arrived at the scene. Paul Hatfield,
a patrol officer with the Huntsville Police Department, was one of the
first officers to arrive. When Hatfield entered the storeroom, he
found the partially nude body of Angela Cagle—she was wearing only her
socks—lying across a desk. Cagle was lying on her left side, and she
appeared to have suffered a gunshot wound to the right side of her
face. Cagle had no visible signs of life.

Cagle's clothing was found near the desk. A bullet
was recovered from the west wall in the area above Cagle's hips. A
second bullet was found on some shelves located directly north of the
victim's head. A shell casing was discovered in the book-shelves, and
another casing was found on the floor in the area near Cagle's body.
When the coroner removed Cagle's body, a second bullet wound was found
on the victim's left cheek. Black buttons were found in the area near
Cagle's body. Another button was later found stuck to the victim's
chest. A negroid pubic hair, consistent with a known pubic hair from
the appellant, was found in the combings from Cagle's pubic hair. In
addition, cloth fibers that did not match Cagle's clothing were found
on her left inner thigh and calf.

Susan Marcum, who was at that time the manager of
the Majik Mart, had spoken with Angela Cagle several times by
telephone that night, the last time being around 2:00 a.m. Marcum was
summoned to the store around 4:00 a.m. She was able to determine that
the last sale occurred at 2:58 a.m., and that no money was missing
from the store and that no gasoline had been stolen. Marcum testified
that the only way to make the cash register emit the tone heard at the
scene was to hit an incorrect button on the register.

Harry Renfroe, Jr., a homicide investigator with
the Huntsville Police Department, assisted in the investigation. On
March 28, 1994, he was contacted by Dewey Miller, the police officer
who was securing the crime scene. Miller informed Renfroe that a black
male had approached him at the scene and had asked what type of gun
was involved in the incident. Miller told the individual that he did
not know. The individual told Miller where he could be reached. Miller
conveyed this information to Renfroe. When Renfroe telephoned the
individual, the man asked Renfroe what type of weapon was used in the
incident. Renfroe asked the individual what type of weapon he was
interested in and the man replied a “.380.” (R. 1154.) The individual
declined to meet with Renfroe that day. When the man telephoned
Renfroe the next day, Renfroe asked him what type of .380 had been
used in the shooting. The individual indicated that he was not sure.
At that time, Renfroe was aware that forensic tests performed on the
bullets recovered from the scene indicated that the weapon used was
most likely a Davis .380. The man subsequently telephoned Renfroe and
told him that the weapon was a Davis .380.

Renfroe agreed to meet with the individual at a
local fast-food restaurant that afternoon. During their meeting, the
man gave Renfroe the appellant's name. When Renfroe asked the
individual why he thought the appellant was involved, the individual
replied that the appellant had a .380 pistol and that the appellant
was trying to make a name for himself. He told Renfroe that the
appellant “was out of control.” (R. 1157.) Renfroe returned to his
office and informed the other investigators of the information that he
had received. The investigators were able to obtain a physical
description of the appellant, his address, and a description of his
vehicle.FN1 Renfroe subsequently spoke with the individual who had
furnished him the appellant's name, and the man said that the
appellant would most likely be at a certain apartment complex that
afternoon or later that evening. A “be-on-the-lookout” was issued for
the appellant.

FN1. Testimony elicited in the suppression hearing
indicated that the officers discovered that there was an outstanding
warrant for the appellant's arrest for third-degree assault. This
information was not provided to the jury.

That night, James Goings, a member of the
Huntsville Police Department special response team, and another
officer spotted the appellant's vehicle. Goings stopped the
appellant's vehicle after it entered the drive-through lane of a fast-food
restaurant. Two officers in another vehicle followed Goings's vehicle
into the parking lot. The appellant cooperated with the officers when
he was ordered out of the vehicle and placed under arrest. The
appellant was subsequently transported to the criminal investigation
division of the police department (CID).

Lisa Hamilton, an evidence technician with the
Huntsville Police Department, assisted by Officer Dwight Hasty,
performed an inventory search of the appellant's vehicle. A Davis .380
pistol, which was wrapped in a shirt, and a clip containing five
rounds of ammunition were found in the appellant's vehicle.

That night, Hamilton transported the weapon and the
clip to Brent Wheeler, a firearms expert with the Alabama Department
of Forensic Sciences. Ballistics tests indicated that the bullets
found at the crime scene had been fired through the weapon recovered
from the appellant's vehicle. Harry Renfroe, one of the investigators,
first spoke with the appellant when the appellant was brought into the
interview room at CID on the night of March 29, 1994. After being
apprised of his rights, the appellant waived his rights and talked
with Renfroe. In response to Renfroe's questions, the appellant
admitted that he had a Davis .380 weapon in his truck. He told Renfroe
that he had borrowed the weapon the previous Thursday from an
individual named “Barrington.” The appellant told Renfroe that the gun
had not been out of his possession since that time, and that it had
been fired twice. When Renfroe inquired about the appellant's
whereabouts on the night of the murder, the appellant told him that he
had fallen asleep on the couch at his girlfriend's apartment, while
watching television. During the course of the interview, Renfroe was
informed that ballistics tests indicated that the gun found in the
appellant's truck was the murder weapon. When Renfroe confronted the
appellant with this fact, the appellant continued to deny any
involvement in the murder. Renfroe left the interview room.

The appellant subsequently asked everyone but James
(Bud) Parker, an investigator with the Huntsville Police Department,
to leave the room, and then he confessed to Parker that he killed
Angela Cagle. Parker testified as follows regarding the statement: “ I
identified myself, and at 016 hours on 3/30/94 I advised him of his
rights. He said he understood and would tell me what happened. “I
first asked him if his name was Derrick O'Neal Mason, date of birth
8/9/74. He said, ‘Yes, sir.’ I asked him if he shot the victim. He
said, ‘Yes sir.’ I asked him why he went into the store. And he said,
‘To rob it.’ I asked him why he shot the victim. He said, ‘I just did
it. It just happened.’ I asked him what time he went into the store.
He said, ‘It was late.’

“During the course of the interview the suspect
stated he went in the door on the side near the Circle K, which would
have been the south door. The victim was from behind—from behind the
counter working on a shelf with the merchandise. He had the gun out
and was trying to cover his face with his arm. He told her to lock the
door, which she did. And she took the key over to the other door and
left it in the key hole. He told her to unlock the cash register and
to give him the money. She said she could not until the next
transaction. He told her to go to the back and to unplug the camera.
She went to the back and he went behind her. He kept telling her to
unplug the camera, and she said there was no camera in the store. He
then said, ‘I did not want to go back out front with the camera on.’
He said, ‘She kept saying there was no camera in the store.’ He did
not believe her because he thought all stores had cameras. He told her,
‘If you don't unplug the camera, I will be forced to shoot you,’ he
said. ‘I had put a bullet in the chamber earlier and was just going to
shoot.’ He said, ‘I had the safety on.’ I asked him if the clip was in
the gun, and he said, ‘Yes.’ I asked him if it was loaded, and he said,
‘Yes.’ He then said, ‘I thought I was going to get carjacked earlier.’
He then said, ‘I kept telling her to unplug the camera, and she kept
saying they did not have a camera, and I did not believe her.’ She
said, ‘Let me go get you the money,’ and I thought she was going to
push some button. The victim started walking and he grabbed her by the
shoulder and her jacket and shirt ripped. He heard the buttons fly off.

“He then said, ‘I saw her private area.’ He said,
‘She was crying and I got real nervous.’ He then told her, ‘If you
don't unplug the camera, I will make you take all your clothes off.’
He looked outside to see if any car had stopped for gas. He told her
to take all her clothes off, which she did. He told her, ‘Now unplug
the camera and show me how to open the cash register.’

“He then said, ‘I was high.’ I asked him what he
was on. He said, ‘Marijuana.’ He then said he heard what he thought
was a car. He said, ‘She was sort of standing in the floor in front of
the desk and she came at me.’ He again said, ‘I was high and the gun
went off and I shot her.’ He said, ‘It scared me....’ He then said, ‘I
looked and saw her leg move and I did not want her to identify me.’ He
said, ‘I turned my head and put the gun down there and shot her the
second time.’

“I asked him how far away he was when he shot her,
and he said, ‘About from me to you,’ which was three to four feet. I
asked him if he aimed the gun for her face, and he said, ‘I just saw
her shoulder. I thought I shot her in the chest.’ I asked him why he
shot her the second time, and he said, ‘I did not want her to identify
me; I just did it.’

“I then asked him where he went after the shooting.
He said, ‘I went up the street to the Executive Lodge and parked for
about 10 minutes and tried to think, to cope with what I had done.’ I
asked him what he took out of the store, and he said, ‘Nothing.’ I
asked him which door he went out as he was leaving the store. He said,
‘The other door,’ which would have been the north door. I then asked
him if he raped the victim, and he said, ‘No.’ I asked him if he
touched her in any way with his hands. He said, ‘Nothing sexually.’ I
asked him where he went when he left the Executive Lodge Apartments,
and he said, ‘I went home and then went to my girlfriend's.’

“I asked him if his girlfriend knew what happened,
and he said, ‘No.’ I asked him if anyone knew, and he said, ‘I tried
to tell my brother to get it off my chest, but I did not.’ I asked him
who owned the gun, and he said, ‘Barrington.’ I asked him if anyone
else was with him, and he said, ‘No.’ I asked him how long he stayed
in the store, and he said, ‘About 10 minutes.’

“I then asked him why he did that. He said, ‘I was
robbing the store to get the money to open a barber shop.’ I then
asked him how he was dressed that night. He said, ‘The jeans and shoes
that I have on and a purple shirt, which is at my girlfriend's house.’
I then asked him if he knew the victim. He said, ‘I have never seen
her before.’ I then asked him if she was sitting up on the desk when
the first shot was fired, and he said, ‘Her feet—her feet [were] on
the floor,’ and he thought she was going to come at him. He said he
shot and thought he hit her in the chest. He then said, ‘Fuck, if she
lives, that will be a witness. I held the gun over her and pulled the
trigger, turning my head.’

“I asked him what he was driving that night, and he
said his mother's blue Oldsmobile and had it parked at Warren House
Apartments and had walked to the store. I then asked him if he pumped
some gas in his car before he shot the victim, and he then said, ‘I
did get $2 in gas about 30 minutes before it happened.’ I asked him if
he got it at that store, and he said, ‘Yes. I just rode around.’ I
then told him to tell me the truth and asked if he pumped $5 in gas
from the north pump, and he said, ‘No.’

“I then asked him how he knew the victim was by
herself. He said, ‘I parked at Warren House behind the Circle K, I
walked down the hill behind the store, I looked inside from up on the
hill, I then went back and got my car and pulled out on Sparkman and
turned into the parking lot on the north side of the building.’ I
again asked if he parked at the gas pumps, and he said, ‘No, I parked
at the door which was locked.’ I asked him if he had anything else he
wanted to tell me, and he said, ‘No, I can't think of anything else.’
“.... “... I then told him there was one other thing I needed to know,
and I asked him if he tried to open the cash register. And he said,
‘Yes, I pushed some buttons and it started beeping and I went out the
door.’ ” (R. 1250–56.)

Barrington Loyd Dames, a student at Oakwood College
at the time of the murder, testified that he was an acquaintance of
the appellant's. Dames loaned the Davis .380 pistol to the appellant
on two occasions. He first loaned the appellant the gun approximately
a week and a half before the murder. The appellant returned the gun to
Dames two days later. Dames again loaned the appellant the pistol on
the Thursday before Angela Cagle was murdered. Dames saw the appellant
approximately two days after Cagle was murdered. The appellant told
Dames that he still had the gun. The appellant did not return the gun
to Dames.

Dr. Joseph Embry, a forensic pathologist for the
Alabama Department of Forensic Sciences, performed the autopsy on
Angela Cagle. He testified that the victim had several bruises on her
body. Embry testified that the bruises to Cagle's left thigh, right
knee, left arm, and buttocks appeared to be recent. Embry testified
that Cagle had two bruises on her head, which appeared to have been
inflicted by the same instrument. Dr. Embry testified that the victim
had suffered two gunshot wounds to her head. The gunshot wound to the
right side of Cagle's head passed through her brain stem, killing her
instantly.

I.

The appellant contends that comments made by the
prosecution during closing arguments at the guilt phase of the trial
mandate reversal of his conviction. Specifically, he claims that
portions of the prosecution's closing arguments “included improper
vouching regarding the credibility of the State's witnesses,
statements of facts not supported by the record, improper statements
of personal opinions regarding the evidence, misstatements of the law,
and misstatements of the role of the jury and the function of a
prosecutor in a criminal trial.” (Appellant's brief, p 13.) FN2

FN2. The state was represented at trial by the
district attorney and an assistant district attorney. The assistant
district attorney argued first for the state in closing, and the
district attorney argued in rebuttal.

The appellant concedes that he did not object to
any of the allegedly improper comments; however, because this is a
case in which the death penalty has been imposed, this Court must
review the comments for plain error. “In all cases in which the death
penalty has been imposed, the Court of Criminal Appeals shall notice
any plain error or defect in the proceedings under review, whether or
not brought to the attention of the trial court, and take appropriate
appellate action by reason thereof, whenever such error has or
probably has adversely affected the substantial right of the appellant.”
Rule 45A, Ala.R.App.P.

The appellant contends that the assistant district
attorney improperly argued facts not in evidence. Specifically, he
maintains that the assistant district attorney's closing argument
“included numerous references to her own personal opinions about the
evidence.” (Appellant's brief, p. 13.) In support of his contention,
he refers us to several portions of the closing argument where the
assistant district attorney prefaced her remarks with the phrase, “I
believe,” or some other similar expression. The appellant argues that
“[a]rguments regarding the prosecutor's personal beliefs are always
improper, because the ‘beliefs' are based on non-record information.”
(Appellant's brief, p. 13.) In a related argument, he maintains that
the prosecutor inappropriately “argued to the jury that in her opinion
[the appellant] tried to rape Ms. Cagle,” a statement that he claims
is not supported by any evidence. (Appellant's brief, p. 13.)

We have carefully reviewed the assistant district
attorney's closing argument and find that, contrary to the appellant's
assertion, the prosecutor did not improperly argue matters not in
evidence. In each instance cited by the appellant, the prosecutor was
legitimately commenting on the evidence and was drawing reasonable
inferences from that evidence. Burton, supra. The fact that the
prosecutor prefaced some comments with “I believe” or “I think,” or
some other similar expression, does not render the comments improper.

We find no error in the portion of the prosecutor's
argument where she stated that the appellant might have tried to rape
the victim. The prosecutor argued: “Do I think he raped her? I don't
know. But what I do think is that he at least tried. There is no other
explanation for having this woman be so completely humiliated with all
of her clothes off. There is no other explanation for the pubic hair
consistent with hers in his [sic]. There is, to me, some indication
that it occurred by virtue of the fact that here on her upper left leg
was a bruise, that on this left leg were found some fibers of clothing
not consistent with his [sic]. I will always believe that as she sat
there on that desk trying to protect her virtue, he tried to pry her
legs apart, perhaps with his elbow, causing this bruise, rubbed up
against her perhaps causing the fibers on her left leg, and that as he
tried to make entry he left that pubic hair in hers.” (R. 1347–1348.)
When the victim was found, she was wearing only her socks, she had a
fresh bruise on her inner thigh, and a negroid pubic hair consistent
with the appellant's was found in her pubic hair. In addition,
material fibers not consistent with her clothing were found on her
inner thigh. Testimony established that the fibers could have been
deposited on the victim by someone rubbing against her. There was
evidence that the victim's shirt had been forcibly removed from her
body. Furthermore, the appellant admitted to the police that he forced
the victim to remove the rest of her clothes. Accordingly, we conclude
that the prosecution's argument is a legitimate inference from the
evidence presented.

B.

The appellant also argues that the assistant
district attorney inappropriately “argued to the jury that they must
take the information provided by the confidential informant ‘as a
matter of law,’ a comment that, he claims, “is a clear misstatement of
the law, and was calculated to mislead the jury.” (Appellant's brief,
p. 14.)

During her closing argument, the assistant district
attorney argued: “In his opening, [defense counsel] stated a number of
things, the most glaring of which I believe to be incorrect, was that
the confidential informant was told by the uniformed officer there at
the scene what type of weapon was used. I think it's important that I
cover that with you. I don't necessarily believe this, but studies
show that some jurors—or most jurors make up their mind about a case,
I think they said 82% of all jurors make up their minds after the
opening statements, and they are not supposed to do that. And I hope
that you have not done that. Because part of what was said by [defense
counsel] was glaringly incorrect. And I hope that as he comes before
you in his closing argument, he will admit that the statements he made
about the confidential informant were in fact, and are in fact,
incorrect.

“Investigator Renfroe told you that Officer Miller
did not tell this suspect [sic] what type of weapon they were looking
for, that Officer Miller did not know the caliber of the weapon they
were looking for. And Officer Miller would have testified, but by
agreement we didn't bring him in and put him on the stand; we allowed
him to testify as to what Officer Miller would say. There is no
dispute about that. And I think [defense counsel] will acknowledge
that—that Officer Miller did not know what type of weapon was used and
he did not tell this informant.

“Now, as a matter of law, information provided by a
confidential informant is admissible, and, if proven to be reliable,
which it was in this case, then the identity and certain other legal
things must happen, but because you were allowed to receive that
confidential informant's information, it was in fact admissible, and
because it was admissible and because it had been discussed by the
parties and with the Judge and the law had been reviewed, the identity
of this informant did not—does not and will not ever have to be
revealed.

“Investigator Renfroe told you that when he was
approached by this young man, he did so on the condition of anonymity,
he wanted to remain confidential. Investigator Renfroe told you from
the stand that to this day his identity remains confidential. It's
known to the parties that need to know, but to the finders of the fact,
you must simply take, because it has been held admissible, the
information that the confidential informant provided, as a matter of
law.

“This confidential informant, who is obviously
known to the defendant, perhaps even a close friend of this defendant,
said that he came to Investigator Renfroe because this young man,
Derrick Mason, was out of control and wanting to make a name for
himself on the streets.” (R. 1340–42.) (Emphasis added to highlight
the portion the appellant finds objectionable.)

The allegedly inappropriate comment cannot be
viewed in isolation, but rather should be viewed in the context in
which it occurred. From our review of the record, it appears that the
prosecutor's comments were directed toward statements made by defense
counsel in opening arguments—in an apparent attempt to discredit the
informant—that implied that the informant had learned from a police
officer at the crime scene what type of weapon was involved. In her
closing argument, the prosecutor reminded the jury that Investigator
Renfroe testified that neither he nor Officer Miller had told the
informant what type of weapon was involved. The prosecutor then told
the jury why Officer Miller was not called to testify. The comment the
appellant finds objectionable occurred as the prosecutor was
explaining to the jury why the confidential informant had not been
called to testify at trial.

When the allegedly objectionable comment is viewed
in the context of the entire closing argument, it is apparent that the
prosecutor was not telling the jurors that as a matter of law they had
to believe the truth of what the informant said; rather, the
prosecutor was explaining to the jury that as a matter of law the
state was not required to reveal the identity of the informant. While
perhaps the prosecutor's argument could have been clearer, we do not
think the comment “ ‘so infected the trial with unfairness as to make
the resulting conviction a denial of due process' ” Burton, 651 So.2d
at 651, quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct.
1868, 40 L.Ed.2d 431 (1974), especially in light of the fact that the
trial court thoroughly instructed the jury that the testimony
regarding what the informant said was not offered to prove the truth
of what the informant is alleged to have said, but rather, it was
offered to explain the sequence of events that followed from the
officer's conversation with the informant. (See Part V of this opinion
for a more detailed discussion regarding the admissibility of the
information conveyed by the informant.) Finally, we note that the jury
was cautioned many times that statements made by the attorneys were
not evidence. Accordingly, the prosecutor's comment does not rise to
the level of plain error.

C.

The appellant contends that the district attorney
“made numerous impermissible comments to the jury.” (Appellant's brief,
p. 14.) Specifically, he maintains that the district attorney
improperly stated to the jury that there are “limitations imposed on
the State in criminal trials regarding the type of testimony that is
admissible.” He claims this comment “clearly invited the jury to
speculate about non-record information.” (Appellant's brief, p. 14.)
He also alleges that the district attorney improperly argued that he
represented the accused. In support of his contentions, he refers this
court to the following portion of the district attorney's closing
argument in rebuttal: “ As I said earlier in this case, I'm not the
State of Alabama.... The State of Alabama is everyone in this
courtroom, everyone who is a citizen of this community, of this county,
and of this state, we are the State of Alabama. I represent you in
this trial, that's my job. That's Ms. Hall's job. “Mr. Ferguson and Ms.
Ferguson represent the defendant. They were retained by he or his
family to represent him, and it's their job to come in here and give
him the best representation that they can.

“Now, the reason I bring this up is that because I
represent the State of Alabama and this defendant is a part of or a
citizen of this community, Ms. Hall and myself in some way also
represent him. And because of that fact, the law says and the rules
that have been developed over the years by our Supreme Court and our
legislature, dictate ... what we can and cannot do in a criminal trial.
And I know—or I suspect—I don't know, but I suspect that at some point
during your deliberations, one or more of you will say to another one,
‘Well, why didn't the State do this?’ or ‘Why didn't the State, the
State's Attorney, say this? Why didn't they ask that witness this
particular question? Why didn't they elicit this particular response
to that question? Why didn't they produce into evidence and give us to
examine a particular piece of evidence?’ Well, if that question arises
or any of those questions arise, that is your answer. We are limited
by the rules of evidence, the rules of this court, and the laws of the
State of Alabama. Because we function or serve a dual function and
part of that being we, in some way, represent the defendant. So we
have to be sure, as best we can, that this defendant gets a fair and
impartial trial. So if any of you, during your deliberations, happen—that
question comes up, ‘Why didn't the State do this? Why didn't he say
this? Why didn't she say that?’ that may be the answer for your
question. Please keep that in mind, we do have these rules. Ms. Hall
and I have no quarrel with those rules. I have been doing this some
twenty-odd years, and people before me a couple of hundred years, have
been operating under these same rules. So we don't have any quarrel
with them. They are good rules, they make our system work. But I
wanted you to understand that the State, the prosecutor, is limited
because of this dual role, this dual function and because of these
rules that are made to make sure that a person charged with a crime
gets a fair trial.” (R. 1399–1402.)

When the comments are examined in context, it is
clear that the district attorney was explaining to the jury that while
his function was to represent the State of Alabama, he also had an
obligation to ensure that the appellant received a fair trial, and in
fulfilling that obligation, he was bound by evidentiary rules. The
district attorney was not inviting the jury to speculate about
nonrecord evidence. On the contrary, the district attorney was
cautioning the jury that it should not speculate about matters that
were not in evidence. We find no plain error in the district
attorney's remarks.

D.

The appellant alleges that the district attorney
improperly argued “that the police obtained fingerprints in ‘one out
of 20 or 25 cases.’ ” He maintains that “[t]here was no testimony
regarding these statistics, and to argue them to the jury was improper.”
(Appellant's brief, p. 14.) During defense counsel's closing argument,
counsel argued that the appellant's fingerprints were not found at the
scene—a matter that the state stipulated to during the testimony of
the trace evidence technician.

During rebuttal closing arguments, the district
attorney argued: “All right. Let's talk just a minute about some of
the other, what we call trace evidence, that was found at the scene.
Lisa Hamilton is an experienced crime scene investigator. She
collected all the evidence that she thought was relevant to this case.
She checked for fingerprints. They lifted a number of what we call
latent fingerprints, none of which turned out to be of any value. That
means they couldn't be identified, or the ones that could were not
identified as belonging to this defendant. But the ones that could
were not identified as belonging to anybody else, either. So we don't
know.

“I submit to you that as she said, fingerprints are
the kind of things that we prosecutors love to have but we very seldom
get, contrary to what you see in the movies and on T.V. It's just one
of those things, that if we—maybe one out of 20 or 25 cases we will
have a fingerprint that can be identified. You can imagine in a
convenience store all the surfaces from which you would expect to get
somebody's fingerprints, like the door handles, the cash register, the
counter around the cash register, and that sort of thing. How many
people touch those things in a day's time or a week's time or month's
time, between when they are cleaned and the next time? And it's just—you
know, I put my fingerprints on a piece of glass. You come along behind
it, you put yours on top of it, and neither of ours are going to be
susceptible to identification. And that's just a fact of life. It's
one I wish we had better technology and I wish we had fingerprints in
every case, but we don't. But we always look for them. We keep trying.
And once in a while we are rewarded with some. And there are a lot of
reasons you don't find fingerprints, but those are some of the common
ones.” (R. 1430–1431.)

The prosecutor's argument was directed toward
defense counsel's intimation that the state's evidence was
insufficient because the appellant's fingerprints were not found at
the scene. Counsel has the right to respond to arguments by opposing
counsel. Chandler v. State, 615 So.2d 100, 110 (Ala.Cr.App.1992), cert.
denied, 615 So.2d 111 (Ala.1993) (Ingram, J., dissenting). Although
the specific number of times that fingerprints are successfully
recovered was not in evidence, we do not find that the prosecutor's
comment regarding that statistical figure “ ‘so infected the trial
with unfairness as to make the resulting conviction a denial of due
process.’ ” Burton, 651 So.2d at 651, quoting Donnelly, 416 U.S. 637,
94 S.Ct. 1868, 40 L.Ed.2d 431. Furthermore, as previously noted, the
jury was cautioned numerous times that comments by counsel are not
evidence. Accordingly, the prosecutor's comment does not rise to the
level of plain error.

E.

The appellant again suggests that a comment made by
the district attorney during his rebuttal closing argument
inappropriately “invited the jury to speculate on evidence not
admitted in the trial.” (Appellant's brief, p. 15.) Specifically, he
argues that the district attorney committed reversible error when he
told the jury that the trial court had sustained defense counsel's
objection to the admission of fibers into evidence and then stated, “
‘so you don't have them.’ ” (Appellant's brief, p. 14–15.)

The district attorney argued, in pertinent part:
“What about these hairs and everything that was collected at the scene?
[Defense counsel] made some issue about why the Caucasian hairs were
not compared to someone else. Well, I submit to you that in this case,
very soon after this crime was committed, Huntsville Police Department
had developed a suspect, and very shortly thereafter, within a couple
of days, as I recall, he was arrested and made a statement that is
contained in [Investigator] Bud Parker's report, which effectively
eliminated anyone else as a suspect in this case. So the detectives
who handled this case, I'm sure—and I haven't asked them this—didn't
see the need to go on and search further for a suspect. We have got a
guy who has confessed.

“Besides that, as I recall, none of these hairs
were compared to any known head hair, pubic hair, body hair, or
otherwise, until sometime this year, which is about a year after the
crime was committed. So during that period of time we have had all of
those hairs, fibers— the fibers, by the way, that were recovered from
the body, we offered and defense objected, as they have a right to do,
and the Judge ruled that they are not admissible and they are not in,
so you don't have them. But if we had found any other trace evidence
that had any bearing on this case, either pointing towards the
defendant's guilt or his innocence, we would have brought them to you.
“As a matter of fact, the law requires us to let the other side know
everything that we have, and we did in this case.” (R. 1431–1433.) (Emphasis
added to highlight the portion the appellant finds objectionable.)

“[T]he prosecution must avoid statements that
suggest to the jury that there exists evidence of a defendant's guilt
that was not placed before the jury....” Roberts v. State, 735 So.2d
1244 (Ala.Cr.App.1997). When the comment alleged to be inappropriate
is examined in context, it is clear that the prosecution was not
suggesting that there was other evidence of the appellant's guilt. On
the contrary, the prosecutor informed the jury that there was no
additional evidence. Furthermore, although the actual fibers were not
admitted into evidence, the jury was aware of the existence of the
fibers because of the testimony from the trace evidence technician.
The technician testified that the fibers had been collected from the
thigh and calf area of the victim's leg, and that the fibers were not
consistent with the victim's clothing. Accordingly, the prosecutor's
reference to the fact that the trial court sustained defense counsel's
objection to the admission of the actual fibers does not rise to the
level of plain error.

F.

The appellant maintains that the district attorney
improperly vouched for the credibility of a witness and that he
commented on matters not in evidence. Specifically, he suggests that
the prosecutor committed plain error when he argued to the jury that
Investigator Bud Parker had taken numerous statements from defendants
and that Parker had testified many times in trials that resulted in
convictions. We disagree.

During defense counsel's closing argument, counsel
suggested that the appellant's statement to police during the
investigation was not credible. Counsel argued: “This statement and
the inconsistencies these officers say, that—I hope, if you have
listened and remember the testimony, look at all of these exhibits and
testimony, you will say there is reasonable doubt that these officers
didn't make this statement up completely. And it's real important,
because if you look at it, it's signed by Officer Parker. And I guess
the thing that bothers me most about that testimony, is that Officer
Parker, Officer Renfroe testified we have got this thing called the
waiver of rights form, the City of Huntsville has these, and they say
we have them out in the file cabinet or some type of bin, but he says
we don't use them. He doesn't testify why they have them if they don't
use them, but he says we don't have to use them, we are not required
to use them. And then he states ‘I don't ever use them.’ He says—and I
believe it was Renfroe—he says, ‘I have used them twice.’ And Parker
says he doesn't use them, he has never used them.

“And they testify—Bud Parker says, ‘I have a tape
recorder,’ he says, ‘I have got it down there.’ He said, ‘I didn't use
it.’ He says, ‘We have got video equipment.’ He says, ‘Yeah, part of
it was working, but part of it wasn't. The part I can bring to court
and show you, no, that wasn't working.’ And he says, ‘Well, my tape
recorder—yeah, I have got a tape recorder,’ he says, ‘but I didn't
tape it, didn't want to.’ And it's important, of course, that he
doesn't say that until the end of the statement. He says, ‘Well, oh, I
asked Derrick these questions, too.’ He didn't ask Derrick at the
beginning of that, that's something he thought of at the end of that
statement, ‘Well, let me put in here that I asked him these things.’
Because he knew this thing—this case was coming to court, and he knew
when he got in front of this jury he was going to have to explain to
you why he didn't tape-record it, he didn't videotape it, he didn't
get a waiver form. And most importantly, this statement, why he wrote
it and he signed it and not Mr. Mason. That's also important. And this
bothers me. He says, ‘I took all these notes.’ The problem is, he
didn't have any of those notes. He has got it typed up, that he did
later. He doesn't bring those notes he says he took that day. ‘Too
many documents, we throw those away.’ ‘We have about 14 homicides a
year,’ I believe he testified to, ‘but we don't keep any sheets.’ And
I think there is a good reason for that.” (R. 1391–93.)

In the prosecutor's rebuttal closing argument, he
argued, in relevant part: “Whether or not any of these officers use a
form, a waiver of rights form, is another smoke screen. Absolutely no
bearing on this case. If you believe Officer Parker, Detective Parker,
one of the most experienced homicide investigators we have got, one
who has investigated hundreds of homicide cases in his career, who has
interviewed and taken statements from numerous defendants, who has
testified any number of times in a court of law which led to
convictions of defendants based on those statements, if you don't
believe what he told you that the defendant told him, so be it. But
whether or not he used a form called a waiver of rights form has
absolutely nothing to do with the truth of his testimony.” (R.
1439–40.)

The prosecutor's statements were in response to the
intimation by defense counsel that the police officers had fabricated
the appellant's statement. Counsel is given wide latitude in
responding to arguments made by opposing counsel. Chandler, 615 So.2d
at 110. Moreover, Detective Parker testified that he had been a
homicide detective since 1980, that he had worked on “hundreds” of
homicide cases, and that he had testified “hundreds” of times in court.
(R. 1227.) Accordingly, the prosecutor's comment on Detective Parker's
vast experience was a legitimate inference from the record and does
not constitute plain error.

II.

The appellant alleges that comments made by the
prosecution during the sentencing phase of the trial diminished the
importance of the jury's role in sentencing, in violation of Caldwell
v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
In support of his contention, the appellant cites comments by the
prosecution in its rebuttal closing argument in which the prosecution
told the jury that its sentencing verdict was an advisory verdict. The
appellant concedes that the prosecution correctly stated the law, but
he maintains that the prosecution's “repeated” emphasis that the
jury's verdict was advisory diminished “the jury's sense of
responsibility.” (Appellant's brief, p. 17.) The appellant did not
object to the allegedly inappropriate comments in a timely manner;
thus, his assertion must be reviewed under the plain error doctrine.
Rule 45A, Ala.R.App.P.

“In Martin v. State, 548 So.2d 488 (Ala.Cr.App.1988),
aff'd, 548 So.2d 496 (Ala.1989), cert. denied, 493 U.S. 970, 110 S.Ct.
419, 107 L.Ed.2d 383 (1989), this Court reiterated the rule enunciated
in Caldwell v. Mississippi, that the prosecutor could not mislead a
jury to believe that, while it may impose a death sentence upon a
defendant, the ultimate responsibility for determining the
appropriateness of the death sentence lay elsewhere. The Martin Court
stated as follows:

“ ‘Under Caldwell v. Mississippi, 472 U.S. 320, 105
S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985), “it is constitutionally
impermissible to rest a death sentence on a determination made by a
sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests
elsewhere.” However, the comments of the prosecutor and the
instructions of the trial court accurately informing a jury of the
extent of its sentencing authority and that its sentence verdict was
“advisory” and a “recommendation” and that the trial court would make
the final decision as to sentence does not violate Caldwell. “Comments
which accurately explain the respective functions of the judge and
jury are permissible under Caldwell ‘as long as the significance of [the
jury's] recommendation is adequately stressed.’ ” Harich v. Wainwright,
813 F.2d 1082, 1101 (11th Cir.1987). Here, neither the prosecutor nor
the trial court misrepresented the effect of the jury's sentencing
recommendation. The cases of Caldwell, supra; Mann v. Dugger, 817 F.2d
1471 (11th Cir.), vacated, 828 F.2d 1498 (1987); Adams v. Wainwright,
804 F.2d 1526 (11th Cir.1986), modified, Adams v. Dugger, 816 F.2d
1493 (11th Cir.1987); and Harich, supra, each involved a situation
where the prosecutor and the trial court misled the jury as to its
critical role in sentencing under state law. In Hooks v. State, 534
So.2d 329 (Ala.Cr.App.1987), this Court reviewed the decisions of
other jurisdictions which have confronted this issue and concluded:
“The trial judge's and the prosecutor's remarks clearly defined the
jury's role in the sentencing scheme. Thus, the jury could not have
been confused as to its responsibility in the sentencing process. The
remarks made here were a correct statement of the law and did not tend
to mislead or misinform the jury. Therefore, we conclude the remarks
were not improper under Caldwell, supra.” ' “548 So.2d at 494.” Travis
v. State, [Ms. CR–92–958, April 18, 1997] ––– So.2d –––– (Ala.Cr.App.1997).
See also, Price v. State, 725 So.2d 1003 (Ala.Crim.App.1997); Ex parte
Taylor, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct.
928, 133 L.Ed.2d 856 (1996).

We have reviewed the prosecution's entire closing
argument, including the allegedly inappropriate comments and the
context in which they were made. From our review of the record, it
appears that the prosecution's comments were made in response to
comments by defense counsel during its closing argument, in which
defense counsel suggested several times that the jury had the ultimate
authority in determining whether the appellant lived or died. Counsel
has the right to reply in kind. Taylor, 666 So.2d at 88. Furthermore,
as the appellant concedes, the prosecution's comments are a correct
statement of the law in Alabama. After reviewing the prosecution's
argument in its entirety, as well as the context in which the
allegedly inappropriate comments were made, we find that “there is ‘no
reasonable possibility that the jury was misled, misinformed, or
confused as to its critical role in sentencing under Alabama law.’ ”
Price, quoting Taylor v. State, 666 So.2d 36, 51 (Ala.Cr.App.1994).
“The prosecutor's comments ... ‘accurately informed the jury of its
sentencing authority and in no way minimized the jury's role and
responsibility in sentencing.’ ” Weaver v. State, 678 So.2d 260, 283 (Ala.Crim.App.1995),
rev'd on unrelated ground, 678 So.2d 284 (Ala.1996). Accordingly, the
prosecution's comments do not constitute plain error.

III.

The appellant maintains that the trial court erred
in denying his motion to suppress the evidence discovered in his
automobile because, he argues, the inventory search of the car was
“not performed according to any standardized procedure.” (Appellant's
brief, p. 19.) Specifically, he contends that “[t]here was no
testimony in this case regarding any standardized criteria established
by the Huntsville Police Department for the inventory search of
automobiles.” (Appellant's brief, p. 19.)

Initially, we note that although the appellant
filed three suppression motions, he did not argue this particular
ground in any of those motions. While the appellant's attorneys did
allude to this ground during their questioning of the police officers
at the suppression hearing, counsel did not specifically move to
suppress the evidence found in the appellant's car on this basis. At
the conclusion of the hearing, one of the appellant's counsel
indicated that she might later want to amend the appellant's
suppression motions to add as a ground that the inventory search was
not performed according to standardized procedure; however, the record
contains no indication that the motions were amended to include this
as a ground. Accordingly, we must review the appellant's allegation
under the plain error doctrine. Rule 45A, Ala.R.App.P. While his
failure to object does not preclude review, it does weigh heavily
against him. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd,
577 So.2d 531 (Ala.1991).

“In Ex parte Boyd, 542 So.2d 1276 (Ala.), cert.
denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989), the
Alabama Supreme Court explained the requirements of a valid inventory
search of an impounded automobile and any containers located therein,
whether conducted at the scene of the arrest or after it has been
towed, as established by South Dakota v. Opperman, 428 U.S. 364, 96
S.Ct. 3092, 49 L.Ed.2d 1000 (1976), and Colorado v. Bertine, 479 U.S.
367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In addition to proving the
lawfulness of the arrest of the accused and the impoundment of the car,
the state must establish that the inventory was accomplished through
standard police procedures: “ ‘[T]he record must sufficiently reflect
what that policy is, describe the policy in such a way that its
reasonableness can be reviewed, and present adequate evidence of what
the employed criteria were.’ “542 So.2d at 1283 (emphasis
original).... “ ‘[A] police officer's conclusory testimony that the
inventory was done in compliance with departmental regulations' is, by
itself, insufficient to bring the search within the inventory
exception. Boyd, 542 So.2d at 1282. Further, the absence of an
inventory list and the fact that inventories are not uniformly
conducted throughout the police department involved lend support to an
inventory's not qualifying as a lawful search. Boyd, supra.” Sheffield
v. State, 606 So.2d 183, 186–87 (Ala.Cr.App.1992).

The pertinent evidence elicited at the suppression
hearing established the following. Within a few days after the murder,
the police received a tip that the appellant was the killer. The
police subsequently discovered that the appellant had an outstanding
warrant for assault in the third degree. A “be-on-the-lookout” was
issued. On the evening of March 29, 1994, Officer James Goings and his
partner spotted the appellant's vehicle and followed it into the
parking lot of a fast-food restaurant. Officer Mark Plemons and his
partner followed Goings's vehicle into the parking lot. Goings stopped
the appellant's vehicle when it entered the drive-through lane of the
restaurant. The appellant was asked to exit his vehicle, and he
complied. He was placed under arrest by Officer Plemons, who had the
outstanding arrest warrant.

Within a few minutes, Officer Dwight Hasty arrived
at the scene. The appellant had already been arrested and placed in a
patrol car. Hasty and Investigator Lisa Hamilton performed an
inventory search of the appellant's vehicle. Hamilton searched the
vehicle, and Hasty recorded the items that Hamilton found on an
inventory sheet. A gun that was subsequently determined to be the
murder weapon and a clip containing ammunition were found between the
front seats of the vehicle. The officers also found “three cassette
tapes, a cassette player with headphones, a pager, Kodak 400 film, a
bag of miscellaneous clothing and other paper items.” (R. 149.)

Hasty testified that police policy authorized them
to impound a vehicle if the seizure of the vehicle is incident to
arrest or if the vehicle is a traffic hazard, or is obstructing “driveways.”
(R. 147.) Hasty testified that the appellant's vehicle was blocking
the drive-through lane of the restaurant. He further testified that it
was department policy to always perform an inventory search of the
vehicle before the wrecker removed the vehicle from the scene. Hasty
testified that the purpose of the inventory was to protect both the
police and the owner of the vehicle from theft that might result while
the vehicle was impounded. Hasty identified the impoundment sheet that
he prepared at the scene. Compare Sheffield, 606 So.2d 183, 187 (“the
absence of an inventory list and the fact that inventories are not
uniformly conducted throughout the police department involved lend
support to an inventory's not qualifying as a lawful search”). Officer
Hasty indicated that he does not generally record such items as empty
cans, or things of that nature, because, he suggested, they have no
value.

In addition to Hasty's testimony regarding the
inventory procedures, Officer Goings testified that police policy
authorizes officers to impound a vehicle if it is a traffic hazard, or
if the vehicle is on property belonging to someone other than the
owner of the vehicle and is “blocking their business” (R. 116.), or if
the vehicle is going to be used as evidence in a trial. He testified
that police policy dictates that in order to impound the vehicle, the
police must inventory “all the contents, [and] damage on it, as far as
the windows, tires, body work, [and] paint.” (R. 116.) Goings said
that the results of the inventory are reported on an inventory sheet.
He testified that, typically, the inventory is performed in the area
where the vehicle is located; however, he indicated that if the
vehicle is parked in a dangerous area, such as on a road, the police
will move the vehicle to the side of the road before performing the
inventory. Goings said that the appellant's vehicle had to be moved
because it was blocking the drive-through lane of the fast-food
restaurant. Goings thought that the “special operations division” had
a copy of the police department's policy on impounding vehicles. (R.
118.)

The appellant does not dispute the legality of his
arrest, and he does not argue that the officers lacked authority to
impound his vehicle. Even, however, had he made such an argument, we
would find that the arrest of the appellant and the impoundment of his
vehicle were proper. The appellant's custodial arrest was pursuant to
an outstanding warrant for assault in the third degree, the validity
of which the appellant does not dispute. Furthermore, once the
appellant was placed under custodial arrest, the officers acted
reasonably in impounding the appellant's vehicle.

“ ‘Impoundment has ... been justified on the
grounds that it is necessary to protect the vehicle from damage and
the police from liability.’ Morton v. State, 452 So.2d 1361, 1366 (Ala.Cr.App.1984),
(overruled by Cannon v. State, 601 So.2d 1112, 1115 (Ala.Cr.App.) ‘to
the extent that Morton holds that a driver must be given an election
on whether to have his vehicle impounded or left where parked’, cert.
denied, 601 So.2d 1112 (Ala.Crim.App.1992)). In United States v.
Martin, 982 F.2d 1236, 1240 (8th Cir.1993), the court found the
impoundment of a legally parked vehicle proper where the owner left
the scene for a ‘suspicious length of time despite his promise to
return, making it likely that no one would claim custody of the
unlocked vehicle, which had valuable equipment inside in plain view.’
The Eighth Circuit Court in Martin stated that ‘[p]olice may take
protective custody of a vehicle when they have arrested its occupants,
see Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739
(1987), even if it is lawfully parked and poses no public safety
hazard. See United States v. Staller, 616 F.2d 1284, 1289–90 (5th
Cir.), cert. denied, 449 U.S. 869, 101 S.Ct. 207, 66 L.Ed.2d 89
(1980).’ Martin, 982 F.2d at 1240. In United States v. Ponce, 8 F.3d
989, 996 (5th Cir.1993), the Fifth Circuit Court of Appeals concluded
that the ‘district court did not err in concluding that [the police
officer] “acted appropriately and legally when he decided to impound
and inventory [the appellant's] truck” ’ where the appellant's truck
was properly parked in the parking lot of the parole office, because
impounding the automobile ‘ensured that the truck was not left in a
public parking lot where it could have become a nuisance, and where it
could have been damaged or stolen.’ Ponce, 8 F.3d at 996. Cf. Riley v.
State, 583 So.2d 1353, 1355 (Ala.Cr.App.), cert. denied, 583 So.2d
1356 (Ala.1991) (vehicle improperly impounded where ‘there is no
indication in the record that the impoundment of the vehicle was
necessary to protect the vehicle from damage or to protect the police
from liability’).” Webster v. State, 662 So.2d 920, 922–23 (Ala.Cr.App.1995).
See also Cannon v. State, 601 So.2d 1112 (Ala.Cr.App.1992) (the fact
that a vehicle was on private property did not preclude impoundment of
the vehicle).

Contrary to the appellant's assertion, there was
evidence regarding the police department's policy on inventory
searches. While the testimony regarding the inventory procedures was
not as detailed as it could have been, there was sufficient evidence
produced to determine that there was a policy, what that policy was,
the reasonableness of the policy, and that the officers acted in
compliance with the established criteria when they conducted the
inventory search—especially in light of the fact that the appellant
did not raise this particular ground either before or during the
suppression hearing, where it could have been thoroughly addressed.
Accordingly, we find no plain error in the trial court's denial of the
appellant's motion to suppress the evidence found in his vehicle.

Even if we were to conclude that the search was not
authorized pursuant to an inventory search, the trial court's denial
of the motion to suppress is due to be affirmed because the search of
the appellant's vehicle was lawful as a search incident to an arrest.
Sheffield, 606 So.2d at 187. This is so even though the appellant was
already handcuffed and placed in the police officer's car when the
appellant's car was searched. Gundrum v. State, 563 So.2d 27 (Ala.Crim.App.1990).

IV.

The appellant contends that the trial court erred
in denying his motion to suppress his custodial statement because, he
claims, “his arrest on the third-degree assault was merely a pretext
for the police to interview him about the homicide of Ms. Cagle.” (Appellant's
brief, p. 20.) As we noted in Part III of this opinion, the appellant
filed three suppression motions; this ground was not specifically
raised in any of those motions. Furthermore, although the appellant
hinted at this ground during the suppression hearing, he did not
specifically move to suppress his confession on this basis.
Accordingly, we must review his assertion pursuant to the plain error
doctrine. Rule 45A, Ala.R.App.P.

The pertinent evidence presented at the suppression
hearing established the following. The appellant was arrested pursuant
to an outstanding arrest warrant against him for third-degree assault.
Following the appellant's arrest, he was transported to the criminal
investigation division (CID). En route to CID, the appellant asked
what he was being arrested for and the officers told him he was being
arrested for third-degree assault, and then an officer read him the
arrest warrant. On the way to CID, there was no discussion regarding
the murder of Angela Cagle.

At CID, the appellant was fingerprinted,
photographed, and apprised of his rights. The appellant did not appear
to be under the influence of alcohol or drugs. The appellant waived
his rights and spoke with investigators about the assault charge.
During the questioning regarding the assault charge, the investigators
learned that a victim of a robbery and an assault that had occurred
approximately two weeks earlier had identified the appellant as the
assailant from a photographic line-up. The appellant was then informed
that he was under arrest for robbery and attempted murder. He was
again apprised of his rights. The appellant waived his rights and
denied any knowledge of the robbery/attempted murder incident.

An investigating officer then questioned the
appellant about the gun found in the appellant's vehicle. The
appellant admitted that he had a gun in his vehicle, but he said that
it did not belong to him. During the course of the questioning, the
investigating officers were informed that the gun found in the
appellant's vehicle was the murder weapon. When the appellant was
confronted with this information, he denied any knowledge of the
murder. The appellant subsequently asked to speak with Investigator
Bud Parker alone. Parker again advised the appellant of his rights.
The appellant waived his rights and confessed to the murder of Angela
Cagle.

“ ‘In Scarbrough [v. State, 621 So.2d 996 (Ala.Cr.App.1992)
], we adopted the “objective” test set forth by the Fifth Circuit
Court of Appeals with regard to determining the validity of an alleged
pretextual arrest: “ ‘ “ ‘Again and again in precisely the present
context, the [Supreme] Court has told us that where police officers
are objectively doing what they are legally authorized to do—as in
arresting [the defendant] pursuant to the valid warrant outstanding
against him and interrogating him without coercion after reading him
repeated Miranda warnings—the results of their investigations are not
to be called in question on the basis of any subjective intent with
which they acted.... “ ‘ “ ‘... The relevant principle of the Supreme
Court is likewise: so long as police do no more than they are
objectively authorized and legally permitted to do, their motives in
doing so are irrelevant and hence not subject to inquiry.... The
correct rule is that, while a showing of objectively reasonable good
faith on the part of the police officers will ordinarily redeem honest
errors and prevent the application of the exclusionary rule, in a case
where the officers have taken no action except what the law
objectively allows [,] their subjective motives in doing so are not
even relevant to the suppression inquiry. And the reason lies in the
purpose of that rule: to deter unlawful actions by police. Where
nothing has been done that is objectively unlawful, the exclusionary
rule has no application and the intent with which they acted is of no
consequence.’ ” “ ‘ “.... “ ‘ United States v. Causey, 834 F.2d 1179,
1184–85 (5th Cir.1987) (emphasis in original) (footnotes omitted).”
Scarbrough, 621 So.2d at 1004.” Webster v. State, 662 So.2d 920,
921–22 (Ala.Cr.App.1995), quoting Fletcher v. State, 621 So.2d 1010,
1022–23 (Ala.Cr.App.1993). See, also, Hutcherson v. State, 677 So.2d
1174 (Ala.Cr.App.1994), rev'd on unrelated ground, 677 So.2d 1205
(Ala.1996).

In this case, the police arrested the appellant
pursuant to an outstanding warrant for third-degree assault. The
appellant does not challenge the validity of the arrest warrant. The
evidence established that the appellant was advised of his rights
three separate times, and that each time he knowingly and voluntarily
waived his rights and spoke with the police. There was no evidence
that the appellant was under the influence of drugs, or that his
confession was coerced by inducements or threats. “As long as the
police officer is doing only what is objectively authorized and
legally permitted, the officer's subjective intent in doing it is
irrelevant.” Ex parte Scarbrough, 621 So.2d 1006, 1010 (Ala.1993). In
this case, the officers' arrest and questioning of the appellant were
objectively reasonable; accordingly, we find no plain error in the
trial court's denial of the motion to suppress the appellant's
custodial statement.

V.

The appellant contends that the trial court's
refusal to order the state to disclose the identity of the person who
told Investigator Renfroe that the appellant had committed the murder
constitutes reversible error. We disagree.

Before trial, the appellant filed several motions
that, in essence, requested that the trial court order the state to
reveal the identity of the person who had told the investigating
officer that the appellant committed the offense. The appellant's
motions were discussed several times during various pre-trial hearings
and again at trial. The state objected to disclosing the person's
identity, arguing that the person who had furnished the appellant's
name to Investigator Renfroe was merely a “tipster,” and was not a
material witness. The state also objected on the basis that the
disclosure of the tipster's identity could jeopardize that person's
safety. The trial court agreed with the state and denied the
appellant's motion.

The appellant intimates that the trial court's
failure to order the state to reveal the identity of the informant
violates the principle of Ex parte Monk, 557 So.2d 832 (Ala.1989),
which, he suggests, mandates an “open file” policy and thus entitles
him to the “names and addresses of any persons with knowledge of any
facts surrounding the death of Angela Michele Cagle.” (Appellant's
brief, p. 21.) While Monk does encourage liberal discovery in capital
murder cases, it does not mandate that the state disclose to a
defendant the name and address of every individual who has furnished
information to the state in the investigation of a crime; rather, “
Monk made it clear that whether to order discovery beyond that
required by the constitution or by state law or rule is discretionary
with the trial court.” Council v. State, 682 So.2d 500, 501 (Ala.1996)
(Hooper, C.J., concurring specially in denial of certiorari review).

We find no abuse of discretion in the trial court's
refusal to order the disclosure of the name of the individual who
furnished the appellant's name to Investigator Renfroe. “Since Roviaro
v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it
is clear that the general rule of nondisclosure of witnesses is not
always applicable to the government informant. In cases involving the
‘tipster’ type of informant, who merely conveys information to the
government but neither witnesses nor participates in the offense,
courts generally hold that the disclosure of his identity is not
material and, therefore, not required.” Self v. State, 420 So.2d 792,
795 (Ala.Cr.App.1981), rev'd, 420 So.2d 798 (Ala.1982) (emphasis added).FN3

FN3. The issue in Self was not whether the state
had to disclose the identity of a confidential tipster; rather, the
issue in Self was whether the state had an obligation to secure the
presence at trial of a state's informant, who was a material witness
and whose identity was known by both the state and the defense.

“ ‘Generally speaking, where the identity of a
confidential informer is sought on the issue of guilt or innocence,
and the alleged informer is shown to have been a participant in the
transaction constituting the offense, the prosecution is required to
disclose his identity and address on the request of the accused. The
rule does not apply, however, to an informer who is involved in only
an indirect way, such as a “tipster.” ’ ” Lightfoot v. State, 531
So.2d 57, 58 (Ala.Cr.App.1988) quoting 33 Am.Jur.P.O.F.2d 549 Criminal
Law: Need for Disclosure of Identity of Informant, at 559, 563 (1983)
(emphasis added). See also, Garner v. State, 606 So.2d 177 (Ala.Cr.App.1992);
Colbert v. State, 615 So.2d 1213 (Ala.Cr.App.1992), rev'd on an
unrelated ground, 615 So.2d 1218 (Ala.1992).

The record supports the state's contention that the
individual who had provided the information in this case was merely a
“tipster,” and not a material witness to the crime. The “tipster” was
not present at the crime, nor did the “tipster's” assertion that the
appellant was the perpetrator provide the probable cause to arrest the
appellant—the probable cause to arrest the appellant arose from an
outstanding warrant for third-degree assault. See Harrell v. State,
555 So.2d 257, 261 (Ala.Cr.App.1989) (“[t]he informant ... was a mere
‘tipster’ and was not a participant in the crime and did not provide
probable cause for the arrest”). Moreover, the state demonstrated a
compelling need to keep the individual's identity confidential.

The appellant did not prove at trial, nor does he
demonstrate on appeal, how he was prejudiced by the failure of the
trial court to order that the state disclose the identity of the
individual. Accordingly, the trial court did not err in refusing to
order the state to disclose the identity of the person who told the
investigating officer that the appellant was the perpetrator.

The appellant also argues that the trial court
erred to reversal in allowing Investigator Renfroe to testify to the
substance of his conversation with the “tipster.” He contends that
Renfroe's testimony regarding what the individual had told him
constitutes inadmissible hearsay. The appellant did not object to
Renfroe's testimony; therefore, this Court must review this issue
pursuant to the plain error doctrine. Rule 45A, Ala.R.App.P.

Investigator Renfroe's testimony did not constitute
inadmissible hearsay because it was not offered to prove the truth of
what the “tipster” told Renfroe; rather, it was offered to explain
Renfroe's actions and the sequence of events following his
conversation with the “tipster.” See Sawyer v. State, 598 So.2d 1035,
1038 (Ala.Cr.App.1992), cert. denied, 506 U.S. 943, 113 S.Ct. 386, 121
L.Ed.2d 295 (1992); and D.R.H. v. State, 615 So.2d 1327 (Ala.Cr.App.1993).
Moreover, following Investigator Renfroe's testimony, the trial court
thoroughly cautioned the jury that Renfroe's testimony regarding
statements made to him during the course of his investigation were not
offered to prove the truth of those statements; rather, the testimony
was offered as an explanation of the sequence of events and to explain
Renfroe's actions. “[T]he trial judge's thorough limiting instruction
was more than adequate to explain to the jury the purpose for which
the evidence was received.” Roper v. State, 695 So.2d 244, 246 (Ala.Cr.App.1996),
cert. denied, 695 So.2d 249 (Ala.1997). Accordingly, we find no error
in allowing Detective Renfroe to testify to the substance of his
conversation with the “tipster.”

VI. and VII.

The appellant contends that the trial court
improperly allowed the jury to consider as an aggravating circumstance
that the offense was “especially heinous, atrocious or cruel compared
to other capital offenses” FN4 (Issue VI), and the trial court
improperly found the existence of this aggravating circumstance (Issue
VII). The gist of the appellant's argument is that the finding of this
aggravating circumstance is based primarily on the assumption that the
first bullet wound did not kill the victim, but caused the victim
substantial pain—a finding that, he claims, is not supported by the
record. In support of his contention, he argues that because the
forensic pathologist who performed the autopsy on the victim could not
conclusively determine which of the two bullet wounds occurred first,
there was no evidence to support a finding that the first wound to the
victim caused severe pain and suffering, but did not kill the victim.
The appellant did not object to the submission of this aggravating
circumstance to the jury, nor did he object to the trial court's
finding of this aggravating circumstance; therefore, his assertions
must be reviewed pursuant to the plain error doctrine. Rule 45A,
Ala.R.App.P. FN4. See § 13A–5–49(8), Code of Alabama 1975.

While it is true that the forensic pathologist was
not able to conclusively determine which bullet wound occurred first,
a reasonable inference from the record is that the painful, nonfatal
injury occurred first. Dr. Embry testified that the bullet wound to
the victim's left cheek was fairly superficial in that it would not
cause loss of consciousness or death; however, he testified that such
a wound would be extremely painful. Dr. Embry testified that the
victim would still have been able to move her legs after the gunshot
wound to the left cheek. According to Dr. Embry, the gunshot wound to
the victim's right cheek was “instantly” fatal—the victim could not
have moved her leg after suffering the bullet wound to the right cheek.
The appellant confessed that he shot the victim a second time after he
saw her move her leg. Furthermore, she was found lying on her left
side; the bullet wound to her right cheek was clearly visible. Thus,
one can reasonably infer from the evidence that the first bullet wound
caused the victim great suffering, but that it did not kill her.

Moreover, the determination of the existence of the
aggravating circumstance that the crime was especially heinous,
atrocious, or cruel compared to other capital offenses was not based
solely on the fact that the first bullet wound caused the victim great
suffering; rather, it was based on a combination of factors. The trial
court found, in pertinent part: “The capital offense was especially
heinous, atrocious or cruel compared to other capital offenses. The
Court reaches this conclusion based upon the following evidence: “(a)
The victim, Mrs. Cagle, was alone, defenseless and of no physical
threat to the Defendant. “(b) The Defendant caused or directed the
victim to disrobe in his presence, obviously inflicting great fear and
humiliation in the victim prior to her death. There is no logical
explanation for this behavior on the part of the Defendant except his
indifference and even enjoyment of the suffering of this victim. “(c)
The victim was shot twice at close range as indicated by the expert
testimony. The first shot did not kill the victim but caused great
pain as a result of the shattering of the bone or bones in her face.
The second shot was fired into her face as she lay helpless and
suffering from the first gunshot wound to the other side of her face.
“(d) The Defendant planned this crime in advance, obtaining the gun
used to kill the victim several days earlier and by parking his
vehicle out of view and behind the store. “(e) The Defendant intended
to kill the victim by shooting her the second time, realizing that she
was still alive, so that there would be no witness to this crime. “(f)
The most heinous, atrocious or cruel aspect of this crime was the
execution-style killing of this victim. The court can conclude from
the evidence presented, and from the confession of the Defendant, that
he first made the victim go into the back storage room of the
convenience store, which was not visible from the other parts of the
store, or to anyone who might pass. He caused the victim to completely
disrobe except for her socks, all of her clothing being found under or
near the desk on which her body was found. He shot her at close range
while she sat naked and completely vulnerable to the actions of the
Defendant. Realizing that Mrs. Cagle was not dead because he saw her
move, he inflicted the fatal gunshot wound at close range into the
right side of her face. The Court concludes that the crime of this
Defendant was extremely wicked, shockingly evil, outrageously wicked
and vile and cruel, with the actions of the Defendant designed to
inflict a high degree of pain and fear in the victim, with utter
indifference to, or even enjoyment of, the suffering of this victim.
Any murder of a defenseless victim is to some extent heinous,
atrocious and cruel, but the degree of heinousness, atrociousness and
cruelty, with which this offense was committed, exceeds that common to
all capital offenses.” (C.R.253–54.)

As evidenced from the above, the finding that the
crime was especially heinous, atrocious, or cruel when compared to
other capital offenses was based not only on the fact that the first
bullet wound caused the victim intense pain, but also on the manner of
the murder, as well as the fear and humiliation that the victim most
certainly experienced before her death. These are appropriate factors
to consider in determining the existence of this aggravating factor.
See Ex parte Rieber, 663 So.2d 999 (Ala.1995). Accordingly, the trial
court did not err in allowing the jury to consider as an aggravating
factor that the crime was especially heinous, atrocious, or cruel, nor
did it err in finding the existence of this aggravating circumstance.

VIII.

The appellant maintains that the trial court erred
in denying his request to visit the scene of the crime with his
attorneys. He argues that the trial court's refusal to allow him to
visit the scene with his attorneys denied him the effective assistance
of counsel.

In a pretrial motion hearing, the trial court
denied the appellant's request to visit the scene of the crime with
his attorneys. The trial court ruled that because the appellant was
being held in jail without bond, the court could not allow the
appellant to visit the scene without a compelling reason to do so;
however, the trial court indicated that the appellant's counsel were
free to visit the scene. The appellant did not offer the trial court
any reason he needed to view the scene of the crime—other than his
general assertion in his written motion that his presence at the scene
was necessary to assist his counsel in the investigation of the crime—nor
did he specifically explain how his defense would be prejudiced if he
were not allowed to view the scene. Accordingly, we find no error in
the trial court's denial of the appellant's motion to view the scene
of the crime with his attorneys.

Moreover, the appellant has not established how the
trial court's ruling denied him the effective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, the
appellant must show that his counsel's performance was deficient and
that, but for his counsel's deficient performance, the result of the
proceedings would have been different. Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant has met
neither prong of the two-pronged test set out in Strickland. The
appellant does not indicate how the trial court's ruling rendered his
counsel's performance deficient, nor does he explain how his viewing
the scene of the crime with his attorneys could have changed the
outcome of the proceedings. Accordingly, the appellant is due no
relief on his assertion that the trial court's refusal to allow him to
visit the scene denied him the effective assistance of counsel.

IX.

The appellant contends that he was denied the
effective assistance of counsel as a result of: “A. [T]he failure of
trial counsel to object to impermissible closing arguments of the
prosecutors during the guilt phase; “B. [T]he failure of trial counsel
to object to impermissible closing argument of the prosecutors during
the penalty phase; “C. [T]he failure of trial counsel to object to
hearsay testimony by an alleged confidential informant; “D. [T]he
agreement to stipulate to the admissibility of certain items of
evidence without the state having to prove a proper chain of custody;
and “E. The failure to object to the jury charge regarding ‘especially
heinous, atrocious or cruel.’ ” (Appellant's brief, p. 27.)

Pursuant to the procedure outlined in Ex parte
Jackson, 598 So.2d 895 (Ala.1992),FN5 appellate counsel filed a motion
for a new trial, in which counsel asserted, in very general terms,
that the appellant had received ineffective assistance of trial
counsel.FN6 A hearing was conducted on the motion. During the hearing,
appellate counsel advanced several of the above grounds in support of
the appellant's contention that his trial counsel had been ineffective;
however, neither the appellant nor his trial attorneys testified at
the hearing. The trial court denied the appellant's motion for a new
trial.

FN5. In Ex parte Ingram, 675 So.2d 863 (Ala.1996),
the Alabama Supreme Court overruled Ex parte Jackson “to the extent
that it allows a defendant's newly appointed appellate counsel to move
to suspend the Rule 24.1(b), Ala.R.Crim.P., 30–day jurisdictional time
limit for new trial motions.” 675 So.2d at 865. FN6. The appellant was
represented by different counsel at trial and on appeal.

Although the appellant did not present all of the
above allegations of ineffective assistance of counsel to the trial
court, this Court is obliged to review the appellant's allegations
pursuant to the plain error doctrine. Rule 45A, Ala.R.App.P. “In order
to prevail on an ineffective assistance of counsel claim, a defendant
must meet the two-pronged test set out by Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“ ‘First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This
requires showing that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is unreliable.
Unless a defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.’ “ Id. at 687,
104 S.Ct. 2052.

“ ‘Judicial scrutiny of counsel's performance must
be highly deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or adverse sentence,
and it is all too easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action “might be considered sound trial strategy.” There are countless
ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the
same way.’ “ Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citations
omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).

“And, even if an attorney's performance is
determined to be deficient, the petitioner is not entitled to relief
unless it is also established that ‘there is a reasonable probability
that, but for counsel's unprofessional error, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’
Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “In an ineffective
assistance of counsel claim, the burden is on the claimant to show
that his counsel's assistance was ineffective. Ex parte Baldwin, 456
So.2d 129 (Ala.1984), aff'd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d
300 (1985).” McNair v. State, 706 So.2d 828 (Ala.Cr.App.1997).

The appellant has met neither prong of the
Strickland test. First, the appellant has not demonstrated that his
trial counsel's performance was deficient. As noted, neither the
appellant nor his trial attorneys testified at the hearing. The
arguments of the appellant's counsel in support of the motion for a
new trial are not evidence. Arnold v. State, 601 So.2d 145, 154 (Ala.Cr.App.1992).
Without more, it is impossible to determine trial counsel's rationale
for not objecting to the allegedly improper conduct or comments.
Accordingly, the appellant has not “ ‘overcome the presumption that,
under the circumstances, [counsel's actions] “might be considered
sound trial strategy.” ’ ” McNair, 706 So.2d at 839, quoting
Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Even if we were to assume for the sake of argument
that counsel's performance was deficient, the appellant has not proven
that he was prejudiced by counsel's performance. All of the claims
underlying the appellant's allegations of ineffective assistance of
counsel—with the exception of the claim “D” above—have been addressed
elsewhere in this opinion and found to be without merit. Accordingly,
the appellant has failed to prove that “ ‘there is a reasonable
probability that, but for [counsel's failure to object], the result of
the proceeding would have been different.’ ” McNair, 706 So.2d at 839,
quoting Strickland, 466 U.S at 694, 104 S.Ct. 2052.

In support of the appellant's allegation that his
trial attorneys were ineffective for stipulating to the admissibility
of certain evidence, the appellant refers this Court to a portion of
the record in which counsel agreed to stipulate to the chain of
custody on items of evidence which Investigator Glen Nunley “touched
or helped bag.” (R. 1317.) In that portion of the record, counsel also
stipulated that it was not necessary to have the contract driver for
the Department of Forensic Sciences, who transported the victim's body
to and from the autopsy, testify as a chain of custody witness, and
counsel stipulated to the identity of the deceased. Other than his
broad assertion that there is no evidence that he agreed to the
stipulations, and that any such stipulations should be considered
ineffective assistance “as a matter of law” (Appellant's brief, p.
29), the appellant does not demonstrate how counsel's stipulations
constituted ineffective assistance. Again, the appellant has failed to
overcome the presumption that counsel's conduct fell “ ‘within the
wide range of reasonable professional assistance.’ ” McNair, 706 So.2d
at 839, quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Moreover,
the appellant does not even say how he was prejudiced by counsel's
stipulations, and any prejudice suffered as a result of counsel's
stipulations is not apparent to this Court.

Because the appellant has met neither prong of the
test set forth in Strickland, he is due no relief on his allegations
of ineffective assistance of counsel.

X.

Section 13A–5–53, Code of Alabama 1975, mandates
that in addition to reviewing the case for any error involving the
appellant's capital murder conviction, this Court must review the
propriety of the death sentence. “This review shall include the
determination of whether any error adversely affecting the rights of
the defendant was made in the sentence proceedings, whether the trial
court's findings concerning the aggravating and mitigating
circumstances were supported by the evidence, and whether death was
the proper sentence in the case.” Section 13A–5–53(a).

Pursuant to Rule 45A, Ala.R.App.P., we have
searched the entire record for any error that may have adversely
affected the appellant's substantial rights, whether or not brought to
our attention or to the attention of the trial court. We find no plain
error in either the guilt phase or in the sentencing phase of the
proceedings.

The trial court found the existence of two
aggravating circumstances: that the murder was committed while the
appellant was engaged in the commission of a robbery in the first
degree or an attempt thereof, and that the capital offense was
especially heinous, atrocious, or cruel when compared to other capital
offenses. § 13A–5–49(4) and (8), Code of Alabama 1975. The trial court
found the existence of two statutory mitigating circumstances: the
appellant has no significant history of prior criminal activity, and
that the appellant was 19 years old at the time of the crime. §
13A–5–51(1) and (7), Code of Alabama 1975. With regard to the
nonstatutory mitigating factors, the trial court found:

“The court has also considered the aspects of the
Defendant's character and record, and any of the circumstances of the
offense that the Defendant has offered in mitigation. Specifically,
the Court has considered the family background of the Defendant, the
apparent troubles that he had in the public schools of this county,
the fact that he was diagnosed at an early age with attention deficit
disorder, and that he cooperated with the investigators following his
arrest. The Court has also considered the numerous letters addressed
to this Court by friends or acquaintances of the Defendant or of his
family, most of which have requested this Court impose a sentence of
life without parole.” (C.R.256–57.) The trial court's findings reflect
that it carefully weighed the aggravating and mitigating circumstances
before sentencing the appellant to death. The trial court's findings
are supported by the record.

Accordingly, because we find no plain error in
either the guilt or the sentencing phase of the appellant's trial, and
because we find that the trial court's findings concerning the
aggravating and mitigating circumstances are supported by the record,
we must now determine whether death was the proper sentence. §
13A–5–53(a), Code of Alabama 1975. In so doing, § 13A–5–53(b),
requires this Court to determine: “(1) Whether the sentence of death
was imposed under the influence of passion, prejudice, or any other
arbitrary factor; “(2) Whether an independent weighing of the
aggravating and mitigating circumstances at the appellate level
indicates that death was the proper sentence; and “(3) Whether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.”

We find no evidence that the appellant's sentence
was imposed under the influence of passion, prejudice, or any other
arbitrary factor. Our independent weighing of the aggravating and
mitigating circumstances indicates that death is the proper sentence.
Last, considering both the crime committed and the appellant, we find
that the appellant's sentence is neither excessive nor
disproportionate to the penalty imposed in similar cases. Indeed,
“two-thirds of Alabama's death sentences have been imposed on
defendants convicted of capital murder arising out of robbery-murder.”
McNair v. State, 706 So.2d. 828 (Ala.Cr.App.1997).

Accordingly, the appellant's conviction and
sentence to death are due to be, and are hereby, affirmed.

Ex parte Mason,768 So.2d 1008 (Ala.
2000). (Direct Appeal)

Defendant was convicted in the Madison Circuit
Court, No. CC-94-922, Loyd H. Little, Jr., J., of capital murder and
sentenced to death. Defendant appealed. The Court of Criminal Appeals,
768 So.2d 981, Brown, J., affirmed. Defendant petitioned for writ of
certiorari. The Supreme Court, Johnstone, J., held that: (1) assistant
prosecutor's prefacing many statements with such expressions as “I
believe” and “I think” was not objectionable as reference to matters
outside record; (2) neither admission of testimony about informant's
out-of-court declarations incriminating defendant nor assistant
prosecutor's argument about declarations constituted plain error; (3)
prosecutor's argument that prosecutor and assistant prosecutor
represented not only jurors but also “in some way” defendant did not
constitute plain error; (4) prosecutor's resort to fingerprint
statistics entirely outside record did not constitute plain error; and
(5) prosecutor's comments about number of statements taken and number
of convictions obtained in other cases by detective, that were
completely outside record, did not constitute plain error. Affirmed.

JOHNSTONE, Justice.FN1

FN1. Although Justice Johnstone was not a member of
this Court when this case was orally argued, he has listened to the
audiotape of oral argument.

A Madison County jury convicted Derrick O'Neal
Mason of capital murder committed during the course of a robbery in
the first degree or an attempt thereof. By a vote of 10 to 2, the jury
recommended that Mason be sentenced to death. The trial court followed
the recommendation of the jury and sentenced Mason to death. In a
unanimous decision, the Court of Criminal Appeals affirmed Mason's
conviction and sentence. Mason v. State, 768 So.2d 981 (Ala.Crim.App.1998).
On certiorari review, we affirm.

The thorough and scholarly opinion of the Court of
Criminal Appeals expressly addresses the issues raised by the
petitioner now before us. Our independent review of the record reveals
no further arguable issues. While we agree with the result on every
issue addressed by the Court of Criminal Appeals, we will address the
rationale on some of these issues.

The opinion of the Court of Criminal Appeals
supplies the facts of this crime. We will detail further facts only to
the extent necessary to discuss particular issues.

At trial the defendant-petitioner did not preserve
for review any of the issues we will discuss. Thus the issues will be
considered under the “plain-error” rule.

In arguing to the jury, the assistant prosecutor
prefaced many of her statements with such expressions as “I believe”
and “I think,” without objection by the defense. The petitioner now
argues that the assistant prosecutor was thereby arguing matters
outside the record. Because the substance of the assistant
prosecutor's statements was supported by evidence introduced during
the trial, the comments were not objectionable as references to
matters outside the record. Such first-person prefaces as “I believe”
and “I think” should, however, be avoided inasmuch as they may be
construed as the advocate's personal voucher for the truth of the
evidence, an improper practice. See Woods v. State, 19 Ala.App. 299,
97 So. 179 (1923), rev'd on other grounds, 20 Ala.App. 200, 101 So.
314 (1924), aff'd, 21 Ala.App. 436, 109 So. 171 (1926); and Arthur v.
State, 575 So.2d 1165 (Ala.Crim.App.1990). But see Williams v. State,
710 So.2d 1276 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350, cert.
denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998); and
Coral v. State, 628 So.2d 988 (Ala.Crim.App.1992), aff'd, 628 So.2d
1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d
61 (1994).

In the particular case before us, the assistant
prosecutor's continual use of these first-person prefaces tends to
diminish the force of her argument rather than to increase it. The
evidence in this case was so emotionally compelling that its impact
would have been greater had it been argued as established fact instead
of personal belief. Thus, in the context of the particular facts of
this case, the use of these first-person prefaces did not prejudice
the defendant, much less prejudice him enough to entitle him to relief
under the plain-error rule. See e.g. Williams, supra; Ex parte Rieber,
663 So.2d 999 (Ala.1995), cert. denied, 516 U.S. 995, 116 S.Ct. 531,
133 L.Ed.2d 437 (1995); and United States v. Young, 470 U.S. 1, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985).

The petitioner complains that the trial court
allowed the State, without objection from the defendant, to elicit
testimony from the investigating officer recounting out-of-court
declarations by an informant incriminating the defendant. The out-of-court
declarations included an identification of the murder weapon, a
description of the defendant, the name of the defendant, and a
statement that the defendant was “out of control” and that he was
“trying to make a name for himself and that he was involved in this
homicide.” The petitioner further complains that the trial court
allowed the assistant prosecutor to argue, without objection by the
defendant, that, “you must simply take, because it has been held
admissible, the information that the confidential informant provided,
as a matter of law.”

The informant's out-of-court declarations had been
offered, without objection, for the dubious purpose of showing why the
officer conducted his investigation and expressly not for the purpose
of proving the truth of the matter stated. Likewise, the trial court
had admitted this testimony expressly subject to these limitations.
The out-of-court declarations would have been inadmissible hearsay for
the truth of the matter stated. Rule 801 C; C. Gamble, McElroy's
Alabama Evidence, § 242.01(2) (5th ed. 1996). Thus, to the extent that
the assistant prosecutor's remarks can be construed as arguing the
out-of-court declarations for the truth of the matter stated, the
argument was improper.

Neither the admission of the testimony about the
informant's out-of-court declarations nor the prosecutor's argument
about them can work a reversal, however, unless the defendant suffered
enough prejudice to meet the standards of the plain-error rule. Rule
45, Ala. R.App. P. Moreover, the plain-error rule does not entitle a
defendant to relief if reasonable trial tactics or strategy could
account for the defendant's not interposing an objection or otherwise
preserving the matter for review. Hallford v. State, 629 So.2d 6 (Ala.Crim.App.1992),
cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994);
Luke v. State, 484 So.2d 531 (Ala.Crim.App.1985). We judge the
reasonableness of such tactics or strategy from the circumstances as
they would have been perceived by the defense at the time for
preserving error rather than at a later time in hindsight. Strickland
v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Duren v. State, 590 So.2d 360, 362 (Ala.Crim.App.1990), aff'd,
590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594,
118 L.Ed.2d 310 (1992); Falkner v. State, 586 So.2d 39 (Ala.Crim.App.1991).

The defense may have intentionally allowed the
admission of the out-of-court declarations of the informant in order
to reap the mitigating benefit of the informant's statement that the
defendant was “out of control.” Indeed, at the sentencing phase, the
defense did argue the sixth statutory mitigating factor-that “[t]he
capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was substantially
impaired.” (Emphasis added.) Section 13A-5-51, Ala.Code 1975.

Moreover, rulings by the trial court either
excluding the informant's out-of-court declarations or prohibiting the
prosecutor's argument regarding the declarations could not have
substantially increased the likelihood of either an acquittal or a
life-without-parole recommendation. The State's evidence against the
defendant was chiefly that the authorities had seized the murder
weapon from the defendant's possession and that the defendant had
given a detailed confession describing not only the murder itself but
also the defendant's bizarre and cruel conduct culminating in the
murder. Two police officers observed and heard the confession and
recounted it to the jury with enough consistency to impart great
credibility to their testimony and, indeed, just enough inconsistency
in some details to prevent their testimony from being suspect as the
product of improper collaboration. The out-of-court declarations by
the informant pale into insignificance in comparison with this other
damning evidence. Furthermore, the trial judge expressly instructed
the jury not to consider the informant's out-of-court declarations for
the truth of the matter stated. Thus we do not find prejudice that
would warrant relief under the plain-error rule.

The defendant complains that the trial court
allowed the prosecutor to argue, without objection, that the
prosecutor and the assistant prosecutor represented not only the
jurors but also “in some way” the defendant himself. These statements
were improper and objectionable. Had the defendant objected, the trial
court would have been obliged to sustain the objections and to take
curative action.

In context, however, the essence of the
prosecutor's argument was that, because he represented everybody in
the community, he owed duties not only to prosecute the case
vigorously but also to treat the defendant fairly. This description of
his duties was correct. Davis v. State, 494 So.2d 851, 853 (Ala.Crim.App.1986);
Sprinkle v. State, 368 So.2d 554, 561 (Ala.Crim.App.1978), writ
quashed, 368 So.2d 565 (Ala.1979); Gallant v. State, 167 Ala. 60, 63,
52 So. 739, 741 (1910). In context, this argument does not warrant
relief under the plain-error rule.

The petitioner further complains that the trial
court allowed the prosecutor to argue, without objection, and entirely
outside the record, that identifiable fingerprints could be recovered
in only “one out of twenty or twenty-five cases.” The purpose of this
argument was obviously to refute the defendant's argument that an
absence of his identifiable fingerprints at the scene of the crime
indicated that he had not been present. Of course, the prosecutor's
resort to fingerprint statistics entirely outside the record was
improper. Had the defendant objected, the trial judge would have been
obliged to sustain the objection. Smith v. State, 588 So.2d 561 (Ala.Crim.App.1991);
Brown v. State, 374 So.2d 391 (Ala.Crim.App.), aff'd, 374 So.2d 395
(Ala.1979). Indeed, the trial judge did, on a number of occasions,
instruct the jurors generally that the arguments of counsel did not
constitute evidence and that the jurors should not consider the
arguments as evidence.

Here again, the question is whether the improper
argument prejudiced the defendant enough to warrant relief under the
plain-error rule. Without the prosecutor's fingerprint statistic
argument outside the record, would the jurors have been substantially
more likely to conclude that the absence of fingerprints identifiable
as the defendant's at the scene of the crime exonerated him? His
confession and his possession of the murder weapon eclipse any such
likelihood.

Finally, the petitioner complains that the trial
court allowed the prosecutor to argue, without objection, in pertinent
part: “Whether or not any of these officers use a form, a waiver of
rights form, is another smoke screen. Absolutely no bearing on this
case. If you believe Officer Parker, Detective Parker, one of the most
experienced homicide investigators we have got, one who has
investigated hundreds of homicide cases in his career, who has
interviewed and taken statements from numerous defendants, who has
testified any number of times in a court of law which led to
convictions of defendants based on those statements, if you don't
believe what he told you that the defendant told him, so be it. But
whether or not he used a form called a waiver of rights form has
absolutely nothing to do with the truth of his testimony.”

The prosecutor's comments about the number of
statements taken and the number of convictions obtained by Detective
Parker in other cases were completely outside the record and were,
accordingly, improper and objectionable. Smith, supra; Brown, supra.
By this argument, the prosecutor sought to bolster the credibility of
Detective Parker's testimony recounting the defendant's confession. As
already discussed, however, Detective Parker's testimony about the
confession had already been corroborated by the consistent testimony
of another officer, Lisa Hamilton. Moreover, as already discussed, the
trial court instructed the jury, upon a number of occasions, that the
arguments of counsel did not constitute evidence and the jurors should
not consider counsel's arguments as evidence. Thus, here again, the
improper argument does not warrant relief under the plain-error rule.

We find no error to reverse affecting either the
jury verdict finding the defendant guilty or the jury verdict
recommending the death penalty. Moreover, we agree with the Court of
Criminal Appeals in its findings and its analysis regarding the
propriety of the death sentence imposed by the trial court. Therefore,
the judgment of the Court of Criminal Appeals is affirmed.

Background: Following affirmance of his murder
conviction and sentence of death, 768 So.2d 1008, and denial of his
motion for postconviction relief, petitioner sought federal habeas
corpus relief. The United States District Court for the Northern
District of Alabama, No. 05-01932-CV-VEH-PWG, Virginia Emerson Hopkins,
J., denied petition, and application for certificate of appealability
(COA) was granted.

Holdings: The Court of Appeals held that: (1)
petitioner was not entitled to consideration of his Fourth Amendment
claims; (2) petitioner's claim that his confession was coerced was
procedurally defaulted; (3) the prosecutor's use of statements made to
the police by an unidentified informant violated petitioner's Sixth
Amendment right to confront witnesses against him; (4) notwithstanding
the confrontation clause violation, petitioner was unable to show the
prejudice required to reverse his conviction; and (5) notwithstanding
the confrontation clause violation, petitioner was unable to show the
prejudice required to order a new sentencing hearing. Affirmed.

PER CURIAM:

Derrick O'Neal Mason appeals from the denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Mason was convicted in 1998 for the murder of
Angela Michele Cagle, who was found dead in the back room of a
convenience store in Alabama on March 27, 1994. Mason became a suspect
in the Cagle murder after an unidentified man told the police that
Mason had committed the crime, described the gun used, and told the
police that Mason “was out of control” and “trying to make a name for
himself.” A few days after the murder, on March 29, 1994, the
unidentified informant led the police to Mason's car where Mason was
arrested on an outstanding warrant for a misdemeanor assault. As part
of an inventory search, police searched Mason's car and found a gun
that laboratory results later indicated was the same gun used in
Cagle's murder. After arresting Mason around 10:00 p.m., police held
him in an interrogation room, first interrogating him on the assault
for which he was arrested, then on an unrelated prior robbery, and
then on the murder at issue. Approximately two hours later, Mason
confessed to committing the murder.

Mason was tried, found guilty, and the jury voted
10-2 to sentence him to death, a recommendation the trial court
accepted. The Alabama Court of Criminal Appeals and the Alabama
Supreme Court affirmed Mason's conviction and death sentence in 1998
and 2000, respectively, and the United States Supreme Court denied
Mason's petition for a writ of certiorari.

On October 17, 2001, Mason filed a Rule 32 petition
in the Madison County Circuit Court, which was denied on July 7,
2005.FN1 The Alabama Court of Criminal Appeals dismissed Mason's
appeal of that decision, and the Alabama Supreme Court denied
certiorari review. Mason then initiated federal habeas corpus
proceedings in the Northern District of Alabama, and his petition was
denied. After an unsuccessful motion to alter or amend the judgment,
Mason filed a Notice of Appeal. This Court granted Mason's application
for a Certificate of Appealability on the following issues:

FN1. Due to a clerical error, neither Mason nor the
government was notified of the trial court's original ruling, issued
on August 5, 2004, until April of 2005, and the court reissued the
denial on July 7, 2005. • whether Mason's Fourth Amendment rights were
violated by his pretextual arrest and the subsequent search of his
vehicle; • whether Mason's confession was coerced and therefore
involuntary, in violation of the Fifth Amendment; and • whether
Mason's rights under the Confrontation Clause were violated when a
police officer testified to the allegedly hearsay statements made by
the informant.

Standard of Review

We review the district court's conclusions on legal
questions and mixed questions of law and fact de novo and its factual
findings for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th
Cir.2009). However, our review of the Alabama courts' decisionsFN2 are
limited by the terms of 28 U.S.C. § 2254, as amended by the Anti-Terrorism
and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110
Stat. 1214 (1996). See 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S.
362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under AEDPA, we
accord a presumption of correctness to a state court's factual
findings. § 2254(e)(1) (“[A] determination of a factual issue made by
a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear
and convincing evidence.”). We therefore grant habeas relief to a
petitioner challenging a state court's factual findings only in those
cases where the state court's decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d)(2). See Wiggins v. Smith, 539 U.S.
510, 528-29, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

FN2. When the last state court rendering judgment
affirms without explanation, we presume that it rests on the reasons
given in the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797,
803-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Sweet v. Sec'y, Dep't
of Corrs., 467 F.3d 1311, 1316-17 (11th Cir.2006).

AEDPA similarly constrains our review of legal
questions decided on the merits in state court. Under the statute, we
cannot grant habeas relief “with respect to any claim that was
adjudicated on the merits in State court proceedings” unless: [T]he
adjudication of the claim- (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. § 2254(d). The Supreme Court
has further explained the requirements of § 2254(d) as follows:

Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or if the
state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle to the facts
of the prisoner's case. Williams, 529 U.S. at 412-13, 120 S.Ct. 1495.
When, however, a claim is properly presented to the state court, but
the state court does not adjudicate it on the merits, we review de
novo. Cone v. Bell, --- U.S. ----, 129 S.Ct. 1769, 1784, 173 L.Ed.2d
701 (2009).

If a petitioner fails to “properly” present his
claim to the state court-by exhausting his claims and complying with
the applicable state procedure-prior to bringing his federal habeas
claim, then AEDPA typically bars us from reviewing the claim.
Exhaustion requires that “state prisoners must give the state courts
one full opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999); see § 2254(b), (c). That is, to properly exhaust a claim,
the petitioner must “fairly present[ ]” every issue raised in his
federal petition to the state's highest court, either on direct appeal
or on collateral review. Castille v. Peoples, 489 U.S. 346, 351, 109
S.Ct. 1056, 103 L.Ed.2d 380 (1989) (quotation and emphasis omitted).

In the process of exhausting a claim, the
petitioner must comply with all “independent and adequate” state
procedures, or else the petitioner will have procedurally defaulted on
that claim. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct.
2497, 53 L.Ed.2d 594 (1977); Bailey v. Nagle, 172 F.3d 1299, 1302-03;
§ 2254(b),(c). Where a petitioner has not “ properly ... presented his
claims to the state courts,” he will have “procedurally defaulted his
claims” in federal court. O'Sullivan, 526 U.S. at 848, 119 S.Ct. 1728.
To determine whether a state court's procedural ruling constitutes an
independent and adequate state rule of decision, this court has set
forth the following three-part test: (1) “the last state court
rendering a judgment in the case must clearly and expressly state that
it is relying on state procedural rules to resolve the federal claim
without reaching the merits of that claim”[; (2)] the state court's
decision must rest solidly on state law grounds, and may not be
“intertwined with an interpretation of federal law[;]” and (3) the
state procedural rule must not be applied in an arbitrary or
unprecedented fashion. Judd v. Haley, 250 F.3d 1308, 1313 (11th
Cir.2001). We review de novo the district court's determination that a
claim has been procedurally defaulted. See Mize v. Hall, 532 F.3d
1184, 1190 (11th Cir.2008). Under this framework, we address each
argument in turn.

Pretextual Arrest and Vehicle Search

Mason first argues that he was subjected to a
pretextual arrest on a misdemeanor assault warrant, in violation of
his Fourth Amendment rights, and, accordingly, the gun found in his
vehicle in conjunction with this arrest should not have been admitted
into evidence.FN3 He also claims that the search of his vehicle was an
improper inventory search, in violation of the Fourth Amendment. We
find that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d
1067 (1976), precludes our consideration of these arguments. In Stone,
the Supreme Court narrowly delineated the scope of review over Fourth
Amendment claims in federal habeas corpus actions brought under 28
U.S.C. § 2254. The Court held in that case that:

FN3. For the first time on appeal, Mason also
argues that the pretextual arrest violated his Fifth and Sixth
Amendment rights. Thus, because they were waived below, we decline to
address these arguments.

where the state has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial. 428 U.S. at 494, 96 S.Ct. 3037; see Peoples
v. Campbell, 377 F.3d 1208, 1224-26 (11th Cir.2004) (holding that
Stone precluded consideration on habeas review of claim alleging
arrest lacked probable cause); Bradley v. Nagle, 212 F.3d 559, 564
(11th Cir.2000) (holding that Stone precluded consideration of claim
alleging an invalid search).

Mason attempts to distinguish Stone, arguing that
it should not be applied to his case because the state trial court did
not engage in fact-finding on his claim that his pretextual arrest
violated the Fourth Amendment. We do not find any merit to this
argument, as Mason concedes that all the facts relevant to this claim
are undisputed. Bradley, 212 F.3d at 565 (“[F]ull and fair
consideration ... includes at least one evidentiary hearing in a trial
court and the availability of meaningful appellate review when there
are facts in dispute, and full consideration by an appellate court
when the facts are not in dispute.”) (internal quotation marks omitted).

Nor can it be argued that the state appellate court
failed to provide “full consideration” of Mason's claim challenging
his arrest. The Alabama Court of Criminal Appeals, in discussing this
claim, noted that Mason “d[id] not challenge the validity of the
arrest warrant,” and held that the officer's subjective intent in
arresting Mason was irrelevant. Mason v. State, 768 So.2d 981, 1001 (Ala.Crim.App.1998).
As long as the arrest was “objectively authorized,” it was a valid
arrest. Id. We note that the same result would obtain under Whren v.
United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89
(1996) (holding that an officer's “[s]ubjective intentions play no
role” in the analysis of a Fourth Amendment claim).

Likewise, Mason presented to the state courts his
argument that the inventory search of his car was unlawful and the
claim received full and fair consideration. Mason's counsel cross-examined
two police officers regarding the arrest and argued this claim to the
trial court. On appeal, the Alabama Court of Criminal Appeals
thoroughly analyzed this legal claim. See Mason, 768 So.2d at 996-99.
Because Mason received “full and fair consideration” of these Fourth
Amendment claims, we are precluded from considering them here. Stone,
428 U.S. at 494, 96 S.Ct. 3037.

Involuntary Confession

Next, Mason argues that his confession was
involuntary because he was (1) subjected to improper questioning; (2)
intoxicated and hungry during the interrogation; (3) psychologically
coerced, and (4) misled by law enforcement officers. Mason also argues
that, due to this alleged coercion, he was unable to validly waive his
right to not self-incriminate when Miranda warnings were read to
him.FN4 The government argues that the claim is procedurally defaulted
and, in the alternative, that Mason was adequately advised of his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), before being questioned about the murder.

FN4. Although Mason argues that Officer Renfroe did
not read him his Miranda warnings before initiating questioning on the
Cagle murder, the record shows that Officer Parker did read the
Miranda warnings to Mason prior to questioning him on the murder. In
total, Mason received Miranda warnings three times during the
interrogation: before the questioning on the misdemeanor assault
charge, again before being questioned on the robbery charge, and
finally, before being questioned on the murder.

On direct appeal, Mason did not include any
allegations of coercion in his brief. Mason argued only the following
to the state appellate court: Mason confessed to the third-degree
assault, and as such any further questioning of Mason regarding other
alleged incidents was in violation of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The
continued questioning of Mason after his alleged statement regarding
the misdemeanor assault was in violation of his rights under Miranda,
and as such, the alleged custodial statement should have been
suppressed by the trial court.

In his Rule 32 petition, however, Mason alleged
that police interrogators grabbed him, pinned him down to his chair,
and forced him to look at photographs (presumably of the crime scene),
and argued that this conduct rendered his confession coerced and
involuntary. The Rule 32 trial court found that this claim was
procedurally defaulted under Alabama law because it could have been
but was not raised on direct appeal. See Ala. R. Cr. P. 32.2(a)(5).
The Alabama court's ruling is based on an independent and adequate
ground, and Mason does not argue otherwise. Thus, Mason's claim that
his confession was coerced was procedurally defaulted and therefore we
cannot review it. 28 U.S.C. § 2254(b), (c). To the extent that Mason
argues that the State failed to advise him of his Miranda rights, we
find this claim refuted by the record. Accordingly, we cannot say that
the state court's ruling on the legality of his confession is contrary
to or an unreasonable application of clearly established federal law.

Confrontation Clause

Finally, Mason argues that his Sixth Amendment
right to confront witnesses against him was violated, in both the
guilt phase and the penalty phase of his trial, by the introduction of
statements made to the police by an unidentified informant. The
government counters that Mason failed to exhaust this claim and
therefore AEDPA precludes federal court review. § 2254(b)(1)(A). In
the alternative, the government argues that the out-of-court
statements were not hearsay (i.e., they were not offered for the truth
of the matter asserted) and, thus, no Sixth Amendment violation
occurred.

Before trial, Mason made multiple motions to reveal
the identity of the informant and for production of documents listing
individuals whom the prosecution had interviewed but did not intend to
call as witnesses. The trial court denied all of these motions. At
trial, Investigator Harry Renfroe testified that the informant told
him that Mason committed the murder, and that Mason was “out of
control” and “out to make a name for himself.” Mason did not make a
contemporaneous objection. In closing argument during guilt phase, the
prosecutor told the jury:

Now, as a matter of law, information provided by a
confidential informant is admissible ... to the finders of the fact,
you must simply take, because it has been held admissible, the
information that the confidential informant provided, as a matter of
law. This confidential informant, who is obviously known to this
defendant, perhaps even a close friend of this defendant, said that he
came to Investigator Renfroe because this young man, Derrick Mason,
was out of control and wanting to make a name for himself on the
streets.

In closing argument during the sentencing phase,
the prosecution again referred to the informant's statements, telling
the jury: [O]ne theme kept coming out ... [at] some point in time, I
believe one of the witnesses characterized it this way: At some point
in time the defendant took a wrong turn. Took a wrong turn, became out
of control. We heard that from more than one witness. Became out of
control. There comes a time in all of our lives when we have to accept
responsibility for what we do....

You heard him on the witness stand. He wants to be
a leader, he hopes that he can get a life without parole in the
penitentiary so he can be a role model for other young people. Ladies
and gentlemen, we have got a lot of good role models, we don't need
this defendant as a role model for our young people. And like all of
the modern-day criminals, he wants to write a book, wants to profit
from what's happened to him and the horror and the tragedy that he has
inflicted upon another family, including his own family. No evidence
was presented, at either the guilt or penalty phase, to support the
argument that Mason wanted to write a book based on his criminal
conduct.

We first reject the government's argument that
Mason failed to fairly present his Confrontation Clause argument to
the state court and therefore failed to exhaust his claim.FN5 However,
the state court did not address the federal Sixth Amendment claim.
Thus, we review this claim de novo. Cone, 129 S.Ct. at 1784.

FN5. In his brief to the Alabama Criminal Court of
Appeals, Mason alleged the following: The informant was allowed to not
only supply information to Renfroe, but the informant's statements
were presented in front of the jury. Renfroe was allowed to testify
that the informant told him that the weapon used was a .380 caliber,
that the offender was Derrick Mason, and that Mason was “out of
control and was trying to make a name for himself.” ... [T]he
informant's testimony was clearly hearsay and Mason was deprived of
his Sixth Amendment right to confront the witness who accused him of
this crime.

Mason cited the Sixth Amendment as a legal basis
for his argument and presented the factual allegations to make up a
Sixth Amendment claim, which clearly alerted the state court that he
was asserting a federal constitutional issue. See Snowden v.
Singletary, 135 F.3d 732, 735-36 (11th Cir.1998) (holding that
exhaustion requires only “mak[ing] the state court aware that the
claims asserted present federal constitutional issues”). [18] [19] At
the time of Mason's trial, the law provided that the Confrontation
Clause precludes the admission of hearsay statements from an
unavailable witness unless the statements fall within a firmly rooted
hearsay exception or contain a particularized guarantee of
trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65
L.Ed.2d 597 (1980).FN6 The State concedes that the statements do not
bear a particularized guarantee of trustworthiness or fall within a
firmly rooted hearsay exception. Rather, the State argues that the
statements are not hearsay at all because they were admitted to show a
sequence of events, not for the truth of the matter asserted therein.

FN6. Since Roberts, the Supreme Court has held that
the Confrontation Clause forbids “testimonial” statements unless the
defendant has the opportunity to cross-examine the declarant. A
statement is testimonial if it was “made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Crawford v.
Washington, 541 U.S. 36, 52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (quotation
omitted).

The record, however, belies the State's assertion.
The prosecutor clearly used the hearsay statements to establish the
truth of the matter asserted. In addition to the manner in which the
testimony was presented, the prosecutor, in closing, told the jury
they must accept the hearsay testimony “because it has been held
admissible ... as a matter of law.” (emphasis added). Worst of all,
during the penalty phase, the prosecutor told the jury as a matter of
fact that Mason wanted to write a book without a scintilla of evidence
in the record to support such an assertion. It is clear that the
prosecutor relied on these statements during closing arguments for the
truth of the matter asserted therein at both the guilt phase and the
sentencing phase, violating Mason's rights under the Confrontation
Clause.

However, notwithstanding the Confrontation Clause
violation, we cannot reverse a conviction or order a new sentencing
hearing if the error is harmless. United States v. Mills, 138 F.3d
928, 938 (11th Cir.1998). Whether an error is harmless is a mixed
question of law and fact that we review de novo. See Smith v.
Singletary, 61 F.3d 815, 817 (11th Cir.1995) (per curiam). In habeas
proceedings, we review whether a constitutional violation is harmless
by determining “whether the error had substantial and injurious effect
or influence in determining the jury's verdict.” Brecht v. Abrahamson,
507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also
Sims v. Singletary, 155 F.3d 1297, 1315 (11th Cir.1998) (citation
omitted). To show prejudice under Brecht, there must be “more than a
reasonable possibility that the error contributed to the [conviction
or] sentence.” Horsley v. State of Ala., 45 F.3d 1486, 1493 (11th
Cir.1995); Brecht, 507 U.S. at 637, 113 S.Ct. 1710. We analyze the
effect of the Confrontation Clause violation by looking at several
factors, including “the importance of the witness' testimony in the
prosecution's case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of
the witness on material points, ... and, of course, the overall
strength of the prosecution's case.” Delaware v. Van Arsdall, 475 U.S.
673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

Under this standard, Mason cannot show the
prejudice required in order to reverse his conviction. Mason confessed
to the murder shortly after being arrested, and the murder weapon was
found in his car. Mason's confession was thorough and described in
detail the murder scene found by the officers. When viewed in light of
the overall strength of the prosecution's case and the presence of
corroborating evidence, we cannot say that there was “more than a
reasonable possibility that the [Confrontation Clause] error
contributed to the [conviction].” Horsley, 45 F.3d at 1493.

As to the sentencing phase, Mason appears to argue
that the statement that he was out of control was prejudicial because
it tended to support the “heinous, atrocious, and cruel” aggravating
factor. Although we find that the statement was improperly admitted
and that the prosecutor wrongfully argued to the jury that Mason
intended to write a book when there was absolutely no evidence
supporting that statement, we cannot say that the prosecutor's
erroneous conduct had a “substantial and injurious effect” on the
jury's death recommendation in light of the nature of the crime and
the mitigating evidence presented.

Even without the improper testimony and argument,
there was sufficient evidence to support the heinous, atrocious, and
cruel aggravating factor. Mason himself presented testimony that he
lacked the ability to control his behavior. Mason's family also
testified that at times they could not control Mason, and that they
put him on various medications to help him control himself and, even
then, he would still have problems. Based on this testimony, his
counsel was able to argue to the jury that three statutory mitigating
circumstances were present, including that Mason had substantially-impaired
capacity to appreciate the criminality of his conduct or to conform
his conduct to the law. The informant's statement that Mason was “out
of control” is hardly prejudicial if the defense also argued that
Mason could not control his behavior as a mitigating circumstance.
Under all of the circumstances presented in this record, we conclude
that Mason has failed to show “more than a reasonable possibility that
the error contributed to the sentence.” Horsley, 45 F.3d at 1493.

For the foregoing reasons, we find no reversible
error in the conviction and sentence imposed here. AFFIRMED.